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[ { "docid": "23085157", "title": "", "text": "of “ ‘credit,’ ” was one “manifestly” of a clemency nature and the convening authority, therefore, was bound to include . it in his action or to explain his declination to do so in a letter of transmittal, citing United States v. Keller, 23 U.S.C.M.A. 545, 50 C.M.R. 716, 1 M.J. 159 (1975). United States v. Heard, 1 M.J. 538, 540 (A.F.C.M.R.1975). Because he did neither, the court reassessed the sentence and approved a bad-conduct discharge, confinement at hard labor for 13 months 20 days, and forfeitures of $217 pay per month for 15 months. Before this Court, the appellant renews his objection, unsuccessfully litigated throughout, to 22 of the pretrial confinement days, contending that they were erroneously imposed. He asserts that this intrusion on his liberty requires meaningful sentence relief from this Court and urges that because he now has served his total sentence to confinement this relief must at least take the form of setting aside the punitive discharge. While we agree that pretrial confinement for those days was improperly ordered, we conclude that no prejudice remains after the action of the Court of Military Review. Article 59(a), UCMJ, 10 U.S.C. § 859(a). We therefore affirm. I The appellant was apprehended on April 26,1974, and placed in pretrial confinement by his squadron commander, Lieutenant List, on charges alleging 13 specifications of forgery, 4 specifications of making false statements contrary to 18 U.S.C. § 1014, and a single specification of wrongful appropriation. The appellant remained in pretrial confinement until May 7, when he was released and restricted to Lowry Air Force Base for the next 10 days. He was returned to pretrial confinement, again on the order of Lieutenant List, on June 29 and was released on July 2. On August 22, for a third time — on this occasion on the order of the appellant’s new squadron commander, Captain Morrison — the appellant was incarcerated prior to trial, where he stayed until September 3. Finally, once again at Captain Morrison’s order, the appellant was returned to pretrial confinement on September 18 and remained there until completion of his" } ]

[ { "docid": "17201553", "title": "", "text": "Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest. Gerstein, 420 U.S. at 123-25, 95 S.Ct. at 868-69 (footnotes and citations omitted). The requirement that there be a prompt probable cause determination for pretrial confinement by a neutral and detached official is applicable to trials by court-martial. Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976). In that case, the petitioner was placed in pretrial confinement by the commanding officer who exercised special court-martial convening authority over him. The Court of Military Appeals held that the decision to confine must be reviewed. The Court stated: The Code provides no procedure for reviewing the probable cause determination that is made by the person ordering arrest or confinement. While it provides that probable cause is needed to order arrest or confinement and while it enumerates those persons authorized to arrest or confine, it does not go that next step that is mandated by the Constitution. Id. at 270 (footnotes omitted). The Court then mandated the Constitutional requirement: We believe that those procedures required by the Fourth Amendment in the civilian community must also be required in the military community. We discern no considerations of military necessity that would require a different rule. Id. Thus, the Court of Military Appeals, in the Courtney decision, mandated that a decision based on probable cause to place a soldier in pretrial confinement, whether that decision was made by a commander or a law enforcement official, must be reviewed by a neutral and detached magistrate. The President, pursuant to his authority to prescribe court-martial procedure, promulgated R.C.M. 305(i) to provide the review of the decision to place a soldier in pretrial confinement. This provision sets forth a procedure to accomplish two tasks: a probable cause determination concerning whether the accused could be confined; and, a determination whether the accused should continue to remain confined. The review is to be performed within seven days, R.C.M." }, { "docid": "17159266", "title": "", "text": "prescribed for post-trial confinees. MCM, 1969 (Rev.), 1118b(3). Thus, when Courtney was decided, it was clear that both Congress and the President had examined the subject of imposition of pretrial confinement in the military services in great depth. III. PRETRIAL CONFINEMENT POST-' COURTNEY TO R.C.M. 305 In 1975, the Supreme Court decided Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In 1976, in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976), the Court of Military Appeals summarily applied the Gerstein holding to military practice and procedure. It noted that although the commanding officer must receive a report within 24 hours after confinement, “the Code does not require the commanding officer to take further action. And, the general court-martial convening authority need only review the confinement every 30 days.” Courtney, 1 M.J. at 270. Obviously, that perceived omission in the UCMJ was remedied in R.C.M. 305 by requiring the commanding officer to make a probable cause determination promptly after being informed that another authority had ordered an accused into pretrial confinement. The Court went on to require that a “neutral and detached magistrate” make a probable cause determination and a decision whether pretrial confinement should be continued. This latter requirement of course involves information that generally is unrelated to the existence of probable cause and which may be obtainable only from sources located away from the situs of the alleged offense or the place of confinement. In response to Courtney, each military service and the Coast Guard initiated a military magistrate program. See generally Jack E. Owen, A Hard Look at the Military Magistrate Pretrial Confinement Hearing: Gerstein and Courtney Revisited, 88 Mil.L.Rev. 3, 40-47 (1980) (listing time requirements for initial review and probable cause hearings under service regulations in effect the first few years after Courtney and arguing for uniformity between the services). It is important to review these programs briefly because the combined experience gained through their operation throughout the world was used by the Working Group of the Joint-Service Committee and the Code Committee in drafting R.C.M. 305. The Army military magistrate program was" }, { "docid": "17201577", "title": "", "text": "as was done in appellant’s case. I would hold that the appellant received both a prompt probable cause determination under Gerstein and McLaughlin, and a timely review of that determination under R.C.M. 305(i), and is entitled to no further sentence credit. Accordingly, I dissent. . An argument can be made that the probable cause to apprehend requirement of the Fourth Amendment is an exception that does not apply to the military. Rule For Courts-Martial 305(m) provides exceptions when a hearing by a magistrate is not required. Those exceptions are for operational necessity and aboard ships at sea. If the requirement is truly constitutional, it should apply in those instances. But see Courtney, 1 M.J. at 270. In addition, part of the reason for the probable cause determination as set forth in Gerstein; i.e., pretrial confinement may imperil the suspect’s job and interrupt his source of income, does not exist in the military service. See R.C.M. 305 analysis at A21-14.2. Additionally, the initial probable cause determination may be equivalent to a warrant, and thus Gerstein would not apply. Perhaps the Court of Military Appeals will reexamine the holding in Courtney. . Under R.C.M. 305(d), a commander may not order pretrial confinement unless there is probable cause to order such confinement. Appellant has never contended that his commander did not make such a determination prior to confinement. . Indeed, as stated earlier in this dissent, any officer ordering pretrial confinement must make a probable cause determination pursuant to R.C.M. 305(d). . I am concerned that this Court has entered the area of establishing policy by advocating no change in personnel appointed as magistrates and using the implied threat of possible reversal on appellate review if nonlawyers are appointed to perform this function. I mention this only to emphasize that the UCMJ permits nonlawyers to perform numerous judicial functions. Indeed, it has been said that the convening authority, rarely a lawyer, is the most powerful judicial officer in the military justice system. In any event, this Court should stick to its business under Article 66, UCMJ, rather than resort to this type of" }, { "docid": "1188782", "title": "", "text": "310. Judge Cook wrote: An undeviating line of cases in this Court has acknowledged that a commanding officer is qualified to act as a neutral and detached magistrate to authorize a search in the military community- 6 MJ at 330. Chief Judge Fletcher had difficulty accepting a commander as a military counterpart to a civilian magistrate, but he recognized that a search authorized by a commander upon a showing of probable cause may be reasonable. 6 MJ at 330. In United States v. Stuckey, 10 MJ 347 (CMA 1981), Chief Judge Everett, joined by Judge Fletcher, found a search authorization by a commander to be “reasonable.” Chief Judge Everett, however, observed that, while we have “equated” a commander to a federal magistrate, a commander “cannot pass muster constitutionally as a ‘magistrate’ in the strict sense” and that “the commander is not a true ‘magistrate.’ ” 10 MJ at 361. More recently, in United States v. Lopez, 35 MJ 35 (CMA 1992), we decided that a commander who is neutral and detached is entitled to the same judicial deference on appellate review as a military judge when we review a search authorization for probable cause. Although there were four separate opinions in Lopez, a clear majority of this Court decided that the commander qualified as a neutral and detached magistrate in that case. Our decisions involving review of pretrial confinement have dealt with review of the necessity for continued pretrial confinement, now covered by RCM 305(i) and (j), rather than the initial probable-cause determination now covered by RCM 305(d) and (h), although there is considerable dicta concerning the latter. In Courtney v. Williams, supra, this Court entertained a petition for extraordinary relief from a Navy prisoner who had requested the military judge to review the propriety of his pretrial confinement. The military judge ruled that, under then-existing procedures, he had no authority to review pretrial confinement, and the petitioner asked for extraordinary relief. In a decision with three separate opinions, this Court denied relief. Chief Judge Fletcher, joined by Senior Judge Ferguson, held that no relief could be granted because the" }, { "docid": "12049052", "title": "", "text": "Force procedure has operated unfairly. Therefore, we apply our decision in this case prospectively to hearings on pretrial confinement conducted subsequent to the issuance of our mandate and eases on granted petitions pending before this Court. We find the pretrial confinement ordered by the officer exercising special court-martial jurisdiction in both these cases was unlawful. The decisions of the United States Air Force Court of Military Review are affirmed in all respects except that each “appellant will be credited with time served” for the period of his unlawful pretrial confinement. See United States v. Malia, supra at 68. . See generally Owen, A Hard Look at The Military Magistrate Pretrial Confinement Hearing; Gerstein and Courtney Revisited, 88 Mil.L.Rev. 3, 33-40 (1980). . Id. at 33-40. . ABA Standards, Pretrial Confinement (Approved Draft 1968) (2d Approved Draft 1978). . Contrary to the implication of the dissenting opinion, we recognize that due to military exigencies none of the above-mentioned persons may be available to conduct the required pretrial confinement hearing. In these cases, the convening authority and his staff judge advocate as a matter of military necessity can perform this function. See United States v. Ezell, 6 M.J. 307, 330 (C.M.A.1979) (Fletcher, C. J., concurring). . Although, like other commanders, an officer exercising special court-martial jurisdiction may authorize searches and seizures on probable cause, his power in that regard does not exist because he is a “magistrate,” see United States v. Stuckey, 10 M.J. 347 (C.M.A.1981) (Everett, C. J.); therefore, the existence of such authority provides no precedent for his serving as a “magistrate” in matters of pretrial confinement. EVERETT, Chief Judge (concurring): I concur fully with the principal opinion’s conclusion that the Air Force procedure for hearings on pretrial confinement — although it does not appear to have operated unfairly — cannot be reconciled with the constitutional requirement that “the detached judgment of a neutral magistrate” must determine whether an accused remains in pretrial confinement. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). In many instances, the officer exercising special court-martial jurisdiction will" }, { "docid": "12132758", "title": "", "text": "so, especially here, where confinement began at one post and the appellant was transferred in confinement to another post on the seventh day, would result in allowing ten days for magisterial review without meeting the requirement for “good cause” prescribed in R.C. M. 305(i)(4). We find no need to infer good cause here. If good cause for delay exists, it should be established and stated as such in the magistrate’s memorandum. See R.C.M. 305(i)(6). The government urges waiver of the credit here because the trial defense counsel stated “[d]efense further feels that in the absence of any compelling reason, at most, the magistrate can wait ten days to give ... a magistrate’s review. In this case it took 13. Therefore, the defense urges 305k — R.C.M. 305k, should be applied and the accused given additional credit for those days.” We will not apply waiver to such a representation, especially when the defense raised the issue of untimely review of pretrial confinement. The military judge and both counsel bear the responsibility to ensure that correct credit is applied for tardy magisterial review. See United States v. Hill, 26 M.J. at 838. As appellant has already served the confinement portion of his sentence, we will apply the additional credit against his approved forfeitures. United States v. Berry, 24 M.J. 555, 557 (A.C.M.R.1987); R.C.M. 305(k). The findings of guilty and the sentence are affirmed. Appellant shall receive four days pay credit against his sentence to forfeitures. Senior Judge FELDER and Judge KENNETT concur. . We accept the memorandum of the commander at Fort Carson as sufficient for a commander's determination even though the appellant was not there. The memorandum provided a sound basis for his decision. . Rule for Courts-Martial 305(g) provides that the commander of the installation on which the confinement facility is located may direct a prisoner’s release from pretrial confinement. . If continued pretrial confinement is approved, the commander must prepare the memorandum required by R.C.M. 305(h)(2)(C). The only timeliness requirement attached to this memorandum is that it must be available for the military magistrate's review, that is, by the" }, { "docid": "17159208", "title": "", "text": "OF THE COURT OF MILITARY APPEALS In Courtney v. Williams, the Court of Military Appeals reviewed a petition for extraordinary relief challenging the legality of the petitioner’s pretrial confinement. After quoting from Gerstein and observing that the UCMJ provided no procedure for reviewing the probable cause determination made by a person ordering pretrial confinement of a service member, the Court held that a neutral and detached magistrate must decide whether there is probable cause for such pretrial confinement (and whether the service member should be confined). Most importantly, the Court stated: We believe that those procedures required by the Fourth Amendment in the civilian community must also be required in the military community. We discern no' considerations of military necessity that would require a different rule. Moreover, respondents conceded during oral argument Gerstein’s applicability to the military. Courtney, 1 M.J. at 270. The Court of Military Appeals’ deference to Gerstein has been evidenced in decisions further defining the meaning of Courtney v. Williams. For example, in United States v. Lynch, 13 M.J. 394 (C.M.A.1982), the Court announced that “[i]n light of Gerstein v. Pugh” the Court believed that three categories of officials were constitutionally qualified to be judicial officers who could make the pretrial confinement probable cause decisions (i.e., a military judge, a military magistrate empowered by service regulations, and any other person authorized by the UCMJ to confine who is not directly or particularly involved in the command’s law enforcement function). 13 M.J. at 397. See also United States v. Stuckey, 10 M.J. 347 (C.M.A.1981); United States v. Malia, 6 M.J. 65 (C.M.A.1978). A Court of Military Review is not generally free to ignore a precedent established by the Court of Military Appeals. United States v. Jones, 23 M.J. 301, 302 (C.M.A. 1987). In our opinion, this requirement to follow precedent is particularly important in cases involving constitutional issues. Because we believe the Court of Military Appeals has established the precedent that Gerstein is applicable in the Armed Forces, and Gerstein involves a constitutional issue, we conclude that we must follow that precedent. Since we must follow Gerstein, we" }, { "docid": "17201564", "title": "", "text": "hours. The following are suggested as possible methods of providing this review. A. A neutral and detached commander (not an accuser) should review the probable cause determination. If an immediate commander is an accuser, the next superior commander may be called upon to determine the basis for pretrial confinement, including a neutral review of probable cause. See Judge Everett's separate opinion in United States v. Sharrock, 32 M.J. 326, 332-33 (C.M.A.1991). B. In those jurisdictions requiring approval of pretrial confinement by the convening authority or a designee such as the Staff Judge Advocate, the official approving the commander’s pretrial confinement decision may conduct a neutral review of the probable cause determination. C. Where review at a confinement facility is not likely within 48 hours, part-time military magistrates may be asked to review the probable cause determination as part of the initial pretrial confinement processing at the installation. 4. The foregoing are not intended as substitutes for review procedures currently required by the Manual for Courts-Martial, Army Regulation 27-10, command regulations, or confinement facility procedures. They are offered only as suggestions to facilitate complying with the Supreme Court’s 48 hour requirement. 5. Finally, a review required by R.C.M. 305(h) which is conducted within 48 hours of pretrial confinement will satisfy the burden imposed on the government. Staff Judge Advocates may wish to consider whether an adequate number of neutral reviewing officials are available to accommodate reviews within 48 hours. We note that the message refers to R.C.M. 305(h). This section deals with the commander's justification within 72 hours of his decision to confine a soldier prior to trial. The reference to 305(h) is an error and the correct citation for the review mandated by Gerstein is R.C.M. 305(i). . There is no evidence before this Court as to LTC R's authority and whether his determination was final. Neither the government nor the appellant could provide us with the limits of his authority. However, we will assume for purposes of this opinion that his decision was final similar to a decision by a military magistrate under Chapter 9, AR 27-10. . We" }, { "docid": "17159231", "title": "", "text": "a probable cause determination for charges before confinement is authorized. Malia, in pertinent part, held that the confining commander may not overrule the magistrate’s decision to release, relying on the similar reasoning of United States v. Ware, 1 M.J. 282 (C.M.A.1976) (under Article 62(a), UCMJ, 10 U.S.C. § 862(a), a commander could not reverse the finding of a trial judge but could only return the record to the court for reconsideration of the ruling). In Lynch, the Court found an Air Force procedure to be infirm where the special court-martial convening authority was called upon to make the “pretrial confinement decision” because it could not be reconciled with the constitutional requirement that “the detached judgment of a neutral magistrate” must determine whether an accused remains in pretrial confinement. Lynch at 397 (Everett, C.J. concurring) (emphasis supplied). Whether the commander qua convening authority continues to be disqualified is unclear. “Although a commanding officer cannot be equated to a magistrate, he — like a magistrate — must be ‘neutral and impartial’ in performing some of his responsibilities. This expectation applies when the commander is issuing search authorizations; and, likewise, when ordering a suspect into confinement, he must act in a neutral capacity.” United States v. Sharrock, 32 M.J. 326, 333 (C.M.A.1991) (Everett, S.J., concurring in part and dissenting in part). III The significant aspect of Gerstein overlooked by the majority is that the Court inferentially distinguished the initial confinement resulting from arrest from any subsequent determination that confinement should be continued, specifically, bail determinations. See Gerstein, 420 U.S. at 124, 95 S.Ct. at 868 (the probable cause determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release). Cf. id. at 114, 95 S.Ct. at 863 (“[e]ven pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty [citing Bail Act]”). The decision to continue pretrial confinement simply was not at issue in McLaughlin. McLaughlin is concerned solely with the need for a prompt (i.e., 48-hour) determination by an impartial authority of the probable cause to arrest that has led to an" }, { "docid": "17159230", "title": "", "text": "orderly process in which that authorizing official is prevented from representing a law enforcement interest while at the same time authorizing searches and seizures. See generally Lopez, 35 M.J. 35. The requirement in the Manual that a commander be impartial derives from United States v. Ezell, 6 M.J. 307 (C.M.A.1979) and is significant because it recognizes that there is a difference between a commander with his or her various roles and a civilian magistrate. Lopez, 35 M.J. at 41. The Court’s concern in those earlier cases of Malia and Lynch was with the commander as the individual who not only made the pretrial confinement decision, but by default or pursuant to regulation, ultimately determined the legitimacy or justification for pretrial confinement in a given case. As observed in United States v. Rexroat, 36 M.J. at 711 n. 1, in most military situations the offending servicemember is apprehended by shore patrol or military police and returned to control of his commander. The commander then determines the charges and the need for pretrial confinement. Accordingly, there is a probable cause determination for charges before confinement is authorized. Malia, in pertinent part, held that the confining commander may not overrule the magistrate’s decision to release, relying on the similar reasoning of United States v. Ware, 1 M.J. 282 (C.M.A.1976) (under Article 62(a), UCMJ, 10 U.S.C. § 862(a), a commander could not reverse the finding of a trial judge but could only return the record to the court for reconsideration of the ruling). In Lynch, the Court found an Air Force procedure to be infirm where the special court-martial convening authority was called upon to make the “pretrial confinement decision” because it could not be reconciled with the constitutional requirement that “the detached judgment of a neutral magistrate” must determine whether an accused remains in pretrial confinement. Lynch at 397 (Everett, C.J. concurring) (emphasis supplied). Whether the commander qua convening authority continues to be disqualified is unclear. “Although a commanding officer cannot be equated to a magistrate, he — like a magistrate — must be ‘neutral and impartial’ in performing some of his responsibilities." }, { "docid": "17201584", "title": "", "text": "determination of probable cause is made before continued detention is permissible. Military case law indicates that a commanding officer can be neutral and detached for making determinations of probable cause. See United States v. Lopez, 35 M.J. 35 (C.M.A.1992). There is no constitutional requirement that the person determining probable cause have some minimal legal or educational qualifications, or even that the issuing authority be a lawyer. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). The Court of Military Appeals has previously said that a commanding officer is not disqualified from being neutral and detached merely because he was aware of the accused’s prior record of conduct. United States v. Rushing, 11 M.J. 95 (C.M.A.1981). In this case, a neutral and detached commanding officer made a probable cause determination before he authorized pretrial confinement. In our view, an additional review of the probable cause determination by the neutral and detached official, whether a magistrate in the civilian system or a commander in the military system, is not mandated by Gerstein or McLaughlin. B. Our brothers rely on Courtney v. Williams for the proposition that the neutral and detached commanding officer’s decision that probable cause existed should have been further reviewed to pass constitutional muster. Courtney, however, concerned a due process challenge under the Fifth Amendment to a military justice system that made no provision at all for the judicial review of a pretrial confinement decision. The appellant in that case, who was pending a court-martial for two unauthorized absences, attempted to challenge the legality of his pretrial confinement based upon a subsequent assault. At trial the military judge ruled that he had no authority to review the pretrial confinement decision. In reviewing a petition for extraordinary relief filed in Courtney, Chief Judge Fletcher sought to establish a rule for the review of both prongs of the confinement decision. The problem as he saw it was that “The Code provides no procedure for reviewing the probable cause determination that is made by the person ordering arrest or confinement.” Courtney, at 270 (emphasis added). It should" }, { "docid": "14256890", "title": "", "text": "in such a procedure for primary evi-dentiary determinations; this is especially true given the exigencies of the naval service, which allow commands to order a member into pretrial confinement without that commander having the benefit of advice from a lawyer on the efficacy of the evidence, and which, more importantly, properly allow, in Marine Corps commands, for a non-lawyer magistrate. We are certain that both the command and the magistrate will exercise wisdom in their actions, given the serious nature of pretrial confinement. We believe, however, that the proper place for determining any legal questions involving evidence potentially for use at trial is in the courtroom before a military judge. If the case has been referred to a court-martial, then the judge will hear motions for appropriate relief with regard to illegal pretrial confinement at that time, see, e. g., United States v. Lamb, 6 M.J. 542 (N.C.M.R.1978), pet. denied 6 M.J. 162 (C.M.A.1979); if the case has not been referred, a writ for extraordinary relief may lie. See Courtney v. Williams, supra at 268 n. 2. It is not error, however, for the magistrate to consider evidence which may or may not be subject to a later determination by the military judge or other court of inadmissibility under the Fourth Amendment. Accordingly, this assignment of error lacks merit. VI THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN DENYING TRIAL DEFENSE COUNSEL’S MOTION TO DISMISS OR IN THE ALTERNATIVE PROVIDE APPROPRIATE RELIEF BECAUSE APPELLANT WAS UNLAWFULLY .HELD IN PRETRIAL CONFINEMENT BECAUSE THE MAGISTRATE (a) WAS NOT A LAWYER OR JUDICIAL OFFICER; (b) WAS NOT CAPABLE OF MAKING A PROBABLE CAUSE DETERMINATION; (c) DID NOT BELIEVE PROBABLE CAUSE EXISTED; AND (d) WAS NOT FAMILIAR WITH THE STANDARDS FOR RELEASE IF A FINDING OF PROBABLE CAUSE WAS MADE. As discussed above, we believe it proper for the military magistrate to be a non-lawyer when a Marine Corps command is involved, SECNAVINST 1640.10, par. 5a, given the needs of that service and given the nature of the Military Magistrate Program. That the instruction requires a lawyer to be assigned for" }, { "docid": "17159275", "title": "", "text": "confining an accused, even if probable cause does exist. A confined “body” is lost to the unit. That squad leader, machine gunner, flight deck member, or radar operator is not available for deployment, an exercise in which the commander wants his unit to meet its mission and look good, or even for routine watchstanding where some other unit member must cover the confinee’s duties. The delay in holding the magistrate’s hearing inherent in allowing the commander to make his own decision of probable cause and whether confinement should continue is fully justified, in my opinion, since this stage affords an accused a real opportunity to be released from confinement for reasons unrelated to probable cause or other facts which would normally justify continued confinement. The Analysis goes on to make clear that notification of the commander within 24 hours of confinement is mandated by Article 11(b). Thus, in such cases, government agents have the equivalent of one day to make the report. The Analysis also points out that Congress enacted Article 11(b) to set in motion the procedures for approving or disapproving that confinement. This portion of the Analysis makes clear that the rule “places the initial decision for pretrial confinement with the prisoner’s commander.” Although the immediate commander may not be a neutral and detached official for pretrial confinement purposes, it is appropriate to give this officer the initial decision on pretrial confinement, so that the command implications of this determination may be fully considered and developed for later review. This will enable the commander, who is in the best position to assess the predictive elements of the pretrial confinement decision, including not only the prisoner’s likely behavior, but also the impact of release or confinement on mission performance, to make a record of such factors for initial review____ The 72-hour requirement is intended to ensure reasonably prompt action by the commander, while at the same time allowing for situations in which the commander is not immediately available____ MCM, 1984, Analysis, R.C.M. 305(h), App. 21, at A21-15 (citations omitted). This passage reflects a truism — the commander is responsible" }, { "docid": "17159207", "title": "", "text": "report that a member of the commander’s unit or organization has been confined, the commander shall decide whether pretrial confinement will continue.” R.C.M. 305(h)(2)(B) directs that the commander order release of the prisoner unless the commander believes that there is probable cause for continued confinement, based upon standards stated in the Rule. B. R.C.M. 305(i)(l) requires that “[a] review of the adequacy of probable cause to believe the prisoner has committed an offense and of the necessity for continued pretrial confinement shall be made within 7 days of the imposition of confinement.” R.C.M. 305(i)(2) requires that this review be made by a “neutral and detached officer appointed in accordance with regulations prescribed by the Secretary concerned.” C. Exceptions to the above requirements are authorized by R.C.M. 305(m) (n.b., based on operational requirements and confinement of personnel at sea). The above cited rules were drafted to comport with the requirements of Gerstein and decisions of the Court of Military Appeals, including Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Analysis, R.C.M. 305, MCM, App. 21-16. III. PRECEDENT OF THE COURT OF MILITARY APPEALS In Courtney v. Williams, the Court of Military Appeals reviewed a petition for extraordinary relief challenging the legality of the petitioner’s pretrial confinement. After quoting from Gerstein and observing that the UCMJ provided no procedure for reviewing the probable cause determination made by a person ordering pretrial confinement of a service member, the Court held that a neutral and detached magistrate must decide whether there is probable cause for such pretrial confinement (and whether the service member should be confined). Most importantly, the Court stated: We believe that those procedures required by the Fourth Amendment in the civilian community must also be required in the military community. We discern no' considerations of military necessity that would require a different rule. Moreover, respondents conceded during oral argument Gerstein’s applicability to the military. Courtney, 1 M.J. at 270. The Court of Military Appeals’ deference to Gerstein has been evidenced in decisions further defining the meaning of Courtney v. Williams. For example, in United States v. Lynch, 13 M.J. 394 (C.M.A.1982), the" }, { "docid": "3624409", "title": "", "text": "OPINION OF THE COURT PERRY, Judge: In accordance with local Fort Riley procedure, the appellant was placed in pretrial confinement at the order of the post’s staff judge advocate upon the recommendation of the appellant’s company commander. The charge lodged against the appellant was a single specification of larceny. Approximately 2 months later, the appellant filed a motion for release from confinement before the court to which his case had been referred. The Government prosecutor considered the relevant facts incident to the above motion and concluded that the appellant should be released from such confinement. Prior to the scheduled hearing on the motion, the prosecutor advised the battalion commander concerning his conclusions. The battalion commander thereupon ordered the appellant’s release. To that point, the appellant had spent approximately 60 days in pretrial confinement. At trial, the appellant moved for appropriate relief for what he termed “illegal confinement.” After hearing the testimony of Captain Lause, who represented the Government in the matter of the earlier motion, and Captain Theriault, the appellant’s company commander who had recommended confinement prior to trial, the military judge ruled that the confinement was legal, but gave the appellant credit therefor in extenuation and mitigation. In an appeal to this Court, the appellant renews his attack on the legality of the pretrial confinement. First, he challenges the basis for the decision to confine him: that it was not made out of necessity to insure his presence at trial. Second, he claims a denial of due process of law and prejudice on account of the procedures then utilized at Fort Riley which permitted an accused to be confined prior to trial without any review of that decision by a neutral and detached magistrate. On each basis, the appellant must fail. In Courtney v. Williams, 1 M.J. 267 (1976), we opined that after an accused initially is confined a neutral and detached magistrate must make a prompt decision whether the accused could and should be confined prior to his trial. As to whether an accused “could” be confined pending trial, the magistrate must decide the probable cause question, that" }, { "docid": "12132756", "title": "", "text": "appellant’s unit commander at Fort Carson, or to the commander of the unit at Fort Sill to which appellant was attached, or to the installation commander at Fort Sill. Whichever commander was so notified by the confinement facility commander had until not later than 72 hours after the notification to decide whether the pretrial confinement would continue. As the available evidence reflects that the decision to continue the pretrial confinement was not made until the sixth day of confinement, rather than within the maximum limit here of 96 hours, appellant is entitled to one day additional credit against his sentence to confinement. II. Military Magistrate’s Review We also agree with the appellant that he should have received six rather than three days credit against confinement for late magisterial review of his pretrial confinement. Rule for Courts-Martial 305(k) provides day-for-day credit for failure to comply with R.C.M. 305(i). That rule also provides for magisterial review within seven days of the imposition of confinement, except that the “reviewing officer may, for good cause, extend the time limit for completion of the initial review to 10 days after the imposition of pretrial confinement” R.C.M. 305(i)(4) (emphasis added). Further, R.C.M. 305(i)(6) provides that the “reviewing officer’s conclusions, including the factual findings on which they are based, shall be set forth in a written memorandum.” Here, magisterial review occurred thirteen days after imposition of pretrial confinement, but no reason is given in the magistrate’s memorandum as to why his review did not occur by the seventh or even by the tenth day of pretrial confinement. The military judge found no explanation for tardy review, but concluded, “we had 13 days[;] however, because the review could occur as late as the tenth day, only three days were due as the result of noncompliance with the Rules.” We have never inferred “good cause” for a delay in magisterial review simply be cause the review was late. See United States v. Dent, 26 M.J 968, 969 (A.C.M.R.1988) (burden of proof on government to show compliance with R.C.M. 305); United States v. Deloatch, 25 M.J. 718, 719 (A.C.M.R.1987). Doing" }, { "docid": "17201565", "title": "", "text": "are offered only as suggestions to facilitate complying with the Supreme Court’s 48 hour requirement. 5. Finally, a review required by R.C.M. 305(h) which is conducted within 48 hours of pretrial confinement will satisfy the burden imposed on the government. Staff Judge Advocates may wish to consider whether an adequate number of neutral reviewing officials are available to accommodate reviews within 48 hours. We note that the message refers to R.C.M. 305(h). This section deals with the commander's justification within 72 hours of his decision to confine a soldier prior to trial. The reference to 305(h) is an error and the correct citation for the review mandated by Gerstein is R.C.M. 305(i). . There is no evidence before this Court as to LTC R's authority and whether his determination was final. Neither the government nor the appellant could provide us with the limits of his authority. However, we will assume for purposes of this opinion that his decision was final similar to a decision by a military magistrate under Chapter 9, AR 27-10. . We need not decide whether a commander could be appointed to conduct the review of pretrial confinement. The Gerstein requirement is for a detached judicial determination of probable cause for confinement by a neutral official. The reviewing official need not be a lawyer. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). If an individual is performing a prosecutorial function, he cannot be a neutral and detached magistrate. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Court of Military Appeals has permitted three categories of persons to conduct a pretrial confinement probable cause review: a military judge, a military magistrate, and a person authorized by the Code to confine who is not directly or particularly involved in the command’s law enforcement function. United States v. Lynch, 13 M.J. 394 (C.M.A.1982); see also United States v. Lopez, 35 M.J. 35 (C.M.A.1992) (Though the authorizing official must be neutral and detached, there is no constitutional requirement that the person have some minimal legal or educational" }, { "docid": "1188780", "title": "", "text": "Army assumed that it did and issued guidance for implementing it. See 36 MJ at 712-13 n. 5. We agree that the 48-hour time limit imposed by McLaughlin applies to the military services. The purpose of RCM 305 was to comply with Gerstein and Courtney and their progeny. See Drafters’ Analysis of RCM 305, Manual, supra at A21-14.2 (Change 3). McLaughlin refined Gerstein by defining the outer limits of a “prompt” review of pretrial detention. Applying the Courtney mandate, “[w]e discern no consideration of military necessity that would require a different rule.” 1 MJ at 270. It is important to note that McLaughlin merely sets up a presumption of untimely review when the 48-hour limit is exceeded. Therefore, if military exigencies prevent completion of probable-cause review within 48 hours, the fact of those exigencies maybe used to rebut the presumption. The next question is who is constitutionally qualified to conduct the review. PFC Rexroat contends that the probable-cause review must be conducted by a military magistrate. The Government contends that the review need only be made by a neutral and detached official, and that the commander’s initial probable-cause determination under RCM 305(d) and the probable-cause review under RCM 305(h), both of which were accomplished within 48 hours in this case, were sufficient to satisfy Ger-stein and McLaughlin. In cases involving search authorizations, as opposed to imposition of pretrial confinement which is involved in this case, the question whether a commander may qualify as a neutral and detached magistrate has been the subject of many, often fragmented, opinions from this Court. In United States v. Ezell, 6 MJ 307 (CMA 1979), Judge Perry and Judge Cook held that a commander could act as a neutral and detached magistrate and issue a search authorization. In his principal opinion, Judge Perry wrote: We decline, however, to hold that military commanders are per se disqualified to act as neutral and detached magistrates ____ In the case of United States v. Ezell, Number 31,304, we have determined that the commander acted as an impartial magistrate and that decision is, accordingly, affirmed.” 6 MJ at 318," }, { "docid": "12132759", "title": "", "text": "is applied for tardy magisterial review. See United States v. Hill, 26 M.J. at 838. As appellant has already served the confinement portion of his sentence, we will apply the additional credit against his approved forfeitures. United States v. Berry, 24 M.J. 555, 557 (A.C.M.R.1987); R.C.M. 305(k). The findings of guilty and the sentence are affirmed. Appellant shall receive four days pay credit against his sentence to forfeitures. Senior Judge FELDER and Judge KENNETT concur. . We accept the memorandum of the commander at Fort Carson as sufficient for a commander's determination even though the appellant was not there. The memorandum provided a sound basis for his decision. . Rule for Courts-Martial 305(g) provides that the commander of the installation on which the confinement facility is located may direct a prisoner’s release from pretrial confinement. . If continued pretrial confinement is approved, the commander must prepare the memorandum required by R.C.M. 305(h)(2)(C). The only timeliness requirement attached to this memorandum is that it must be available for the military magistrate's review, that is, by the seventh day of pretrial confinement. United. States v. Freeman, 24 M.J. 547, 549 (A.C.M.R.1987). . Regarding duties in this area, we observe the following: (a) the military judge and both counsel bear the responsibility to determine at the trial level whether the commander’s determination, as well as the magistrate’s review, occurred on time and as prescribed by R.C.M. 305. Cf. United States v. Hill, 26 M.J. 836, 838 (A.C.M.R. 1988); (b) in United States v. Freeman, 24 M.J. at 549, this court presumed compliance with R.C.M. 305(h)(2)(A), because Freeman’s commander who imposed the restriction tantamount to confinement decided it would continue. However, we decline to extend that presumption of compliance to situations of actual pretrial confinement. Military magistrates are well-situated to and should gather pertinent facts documenting whether the commander’s determination was timely. That information should be placed in or attached to the magistrate’s memorandum. R.C.M. 305(i)(6)." }, { "docid": "17159209", "title": "", "text": "Court announced that “[i]n light of Gerstein v. Pugh” the Court believed that three categories of officials were constitutionally qualified to be judicial officers who could make the pretrial confinement probable cause decisions (i.e., a military judge, a military magistrate empowered by service regulations, and any other person authorized by the UCMJ to confine who is not directly or particularly involved in the command’s law enforcement function). 13 M.J. at 397. See also United States v. Stuckey, 10 M.J. 347 (C.M.A.1981); United States v. Malia, 6 M.J. 65 (C.M.A.1978). A Court of Military Review is not generally free to ignore a precedent established by the Court of Military Appeals. United States v. Jones, 23 M.J. 301, 302 (C.M.A. 1987). In our opinion, this requirement to follow precedent is particularly important in cases involving constitutional issues. Because we believe the Court of Military Appeals has established the precedent that Gerstein is applicable in the Armed Forces, and Gerstein involves a constitutional issue, we conclude that we must follow that precedent. Since we must follow Gerstein, we logically conclude that we must also follow a decision of the Supreme Court further defining the meaning of terms in Gerstein, unless otherwise directed by the Court of Military Appeals. IV. EFFECT OF PRECEDENT ON R.C.M. 305 The Government agrees with the appellant that his commanding officer’s “72-hour” review, by itself, did not satisfy the requirements of Gerstein and County of Riverside v. McLaughlin. However, for clarification, we hold that a commanding officer’s review within 72 hours of pretrial confinement of a member of his or her command (i.e., the review required by R.C.M. 305(h)(2)) does not satisfy the requirement for a prompt determination of probable cause for confinement by a neutral and detached officer. See Lynch, supra. Additionally, based on precedent discussed above, we join the United States Army Court of Review (en banc) in holding “that the seven-day time requirement for the review of probable cause for pretrial confinement as required by R.C.M. 305(i)(l) will not pass constitutional muster.” United States v. Rexroat, 36 M.J. 708, 712 (A.C.M.R.1992). More precisely, we hold that" } ]

[ { "docid": "329802", "title": "", "text": "must proffer countering evidence sufficient to create a genuine factual dispute.” Id. at 1562. The underlying question here is whether defendant breached the contract by terminating plaintiffs contract for default. “[A] contracting officer has broad discretion to determine whether to terminate a contract for default.” Consol. Indus., Inc. v. United States, 195 F.3d 1341, 1343 (Fed.Cir.1999). Such a decision will be overturned if it is “arbitrary, capricious, or constitutes an abuse of discretion.” Id. at 1343-44. Case law has established the relevant factors: “(1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision, (3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation.” McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1326 (Fed.Cir.1999) (quoting United States Fid. & Guar. Co. v. United States, 230 Ct.Cl. 355, 676 F.2d 622, 630 (1982)). The government bears the burden of showing that the termination was justified. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987). One of the relevant factors in determining whether a contractor is in default is the contractor’s failure to meet contract specifications. McDonnell Douglas, 182 F.3d at 1328; see Granite Constr. Co. v. United States, 962 F.2d 998, 1007-07 (Fed.Cir.1992), cert. denied, 506 U.S. 1048, 113 S.Ct. 965, 122 L.Ed.2d 121 (1993) (recognizing that “the government generally has the right to insist on performance in strict compliance with the contract specifications.”). Once the government proves default, “plaintiff has the burden of proving that the default was excusable under the terms of the contract.” Airport Indus. Park, Inc. v. United States, 59 Fed.Cl. 332, 338 (2004); see Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed.Cir.1994). In this connection, plaintiff alleges that he “has performed all conditions, covenants, and promises required on his part to be performed in accordance with the terms and conditions of the contract except for those he was prevented from performing by Defendant.” Compl. at 116. By terminating his right to perform the contract, plaintiff claims" } ]

[ { "docid": "10824295", "title": "", "text": "must find that defendant has not justified plaintiffs termination for default by a preponderance of the evidence. See Lisbon, 828 F.2d at 765. The court must find that the preponderance of the evidence does not favor Mr. Lee’s recollection of events, supported by his own documentary evidence and partially supported by the testimony of two witness, over plaintiffs recollection of events, partially supported by the testimony of three witnesses. In evaluating the conflicting versions of events given by Ms. Pinckney and Mr. Lee, the court is assisted by the testimony of Mr. Bryant, which the court finds highly credible. Defendant contends that the government has a right to strict performance of the contract and that plaintiffs alleged failure to complete delivery of the mail on July 2, 2005 justified her termination for default. Def.’s Br. 4 (citing, inter alia, In re Greene, 07-1 BCA ¶ 33,471, PSBCA Nos. 5093, 5215, 2007 WL 172111 (Jan. 12, 2007), recons, denied, PSBCA Nos. 5093, 5215, 2007 WL 5442324 (June 11, 2007) and In re Road Service, Inc. (Road Service), 83-1 BCA ¶ 16,218, PSBCA No. 1023, 1982 WL 7294 (Dec. 30, 1982)). The Postal Service Board of Contract Appeals (PSBCA) has stated: “ ‘The need for delivery of the mails necessitates a strong control over performance by the Postal Service.’ ” Road Service, 83-1 BCA ¶ 16,218 at 80,587 (citation omitted). The cases cited by defendant, however, differ in significant ways from the case before this court, namely, in the fact that they involve terminated contractors with the USPS who argued that their nonperformance was excusable, and not a contractor, like Ms. Pinckney, who disputes, with evidentiary support, the underlying factual basis for the termination. See In re Greene, 07-1 BCA ¶ 33,471 at 165,928; Road Service, 83-1 BCA ¶ 16,218 at 80,587-88. Defendant also cites to McDonnell Douglas I for the proposition that “[a] clear violation of contract terms by the contractor supports a finding that a reasonable, contract-related basis for the termination exists.” Def.’s Br. 16 (citing McDonnell Douglas I, 182 F.3d at 1328). However, there is not a clear violation" }, { "docid": "329801", "title": "", "text": "favorable to the non-movant, the record indicates ‘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.’” Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1259 (Fed.Cir.2005) (quoting Rules of the United States Court of Federal Claims 56(c)). The moving party bears the burden of demonstrating “an absence of evidence to support the non-moving party’s ease.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed.Cir.1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, this burden on the moving party is not to produce evidence showing such an absence, but rather, to point out “that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashions, 833 F.2d at 1563. “Where a movant has supported its motion with affidavits or other evidence which, unopposed, would establish its right to judgment, the non-movant may not rest upon general denials in its pleadings or otherwise, but must proffer countering evidence sufficient to create a genuine factual dispute.” Id. at 1562. The underlying question here is whether defendant breached the contract by terminating plaintiffs contract for default. “[A] contracting officer has broad discretion to determine whether to terminate a contract for default.” Consol. Indus., Inc. v. United States, 195 F.3d 1341, 1343 (Fed.Cir.1999). Such a decision will be overturned if it is “arbitrary, capricious, or constitutes an abuse of discretion.” Id. at 1343-44. Case law has established the relevant factors: “(1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision, (3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation.” McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1326 (Fed.Cir.1999) (quoting United States Fid. & Guar. Co. v. United States, 230 Ct.Cl. 355, 676 F.2d 622, 630 (1982)). The government bears the burden of showing that the termination was justified. Lisbon Contractors, Inc. v. United States," }, { "docid": "7890166", "title": "", "text": "(3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation. McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1326 (Fed.Cir.1999) (paraphrasing U.S. Fid. & Guar. Co. v. United States, 230 Ct.Cl. 355, 676 F.2d 622, 630 (1982)). There is no question that, in cases in which a contracting officer exercises his or her discretion to terminate a contract for default, that decision must be “honestly rendered.” Moreland, 76 Fed.Cl. at 284 (internal quotations omitted). Thus, even in eases in which a contractor has technically defaulted on its contractual obligations, the court will not uphold a default termination where the agency has acted in bad faith in administering the contract. Id. at 293; Libertatia Assocs., Inc. v. United States, 46 Fed.Cl. 702, 712 (2000) (stating that “[i]n view of the court’s finding of bad faith on the part of the government, it is difficult—if not impossible—to assess whether the administration of the contract and the resulting termination for default was arbitrary and capricious because the evidence of default itself is tainted by bad faith”). Government agents are presumed, however, to discharge their duties in good faith. Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed.Cir.1986); Kalvar Corp. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301 (1976). To rebut that presumption and to establish that the government indeed terminated a contract in bad faith requires “irrefragable proof.” Abcon Associates, 49 Fed.Cl. at 687-88 (citing Kalvar Corporation, 543 F.2d at 1301-02). Initially, the government bears the burden to show that a default termination was justified because the contractor was in breach at the time of termination. Lanterman, 75 Fed.Cl. at 733 (citing Lisbon, 828 F.2d at 765). A nexus between the government’s decision to terminate for default and the contractor’s performance is required, and the government may not use default as a pretext for terminating a contract for reasons unrelated to contract performance. McDonnell Douglas, 182 F.3d at 1329. One of the questions relevant to a contractor’s alleged default is whether the contractor has met contract specifications. Lanterman, 75 Fed.Cl. at" }, { "docid": "10824263", "title": "", "text": "as provided in paragraph (2), and in lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary. 41 U.S.C. § 609(a)(1). The decision of the contracting officer to terminate a contractor for default is reviewed de novo by the Court of Federal Claims. 41 U.S.C. § 609(a)(3); McDonnell Douglas Corp. v. United States (McDonnell Douglas II), 76 Fed.Cl. 385, 415 (2007). Default termination is a “‘drastic sanction ... which should be imposed (or sustained) only for good grounds and on solid evidence.’ ” McDonnell Douglas II, 76 Fed.Cl. at 415 (quoting J.D. Hedin Constr. Co. v. United States, 187 Ct.Cl. 45, 57, 408 F.2d 424, 431 (1969)) (omission in original). “Termination is a forfeiture that is disfavored in the law and to be construed narrowly by the courts.” Id. (citing DeVito v. United States, 188 Ct.Cl. 979, 990, 413 F.2d 1147, 1153 (1969)). The burden is on the government to prove by a preponderance of the evidence that a termination for default was justified. Lisbon Contractors, Inc. v. United States (Lisbon), 828 F.2d 759, 765 (Fed.Cir.1987). “[T]here must be a nexus between the government’s decision to terminate for default and the contractor’s performance.” McDonnell Douglas Corp. v. United States (McDonnell Douglas I), 182 F.3d 1319, 1329 (Fed. Cir.1999). However, a “contracting officer has broad discretion to determine whether to terminate a contract for default” and this decision will be overturned only if it is “ ‘arbitrary, capricious, or constitutes an abuse of discretion.’” Consol. Indus., Inc. v. United States, 195 F.3d 1341, 1343-44 (Fed.Cir.1999) (quoting McDonnell Douglas I, 182 F.3d at 1326). There are four factors relevant to this determination: “(1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision, (3) the amount of discretion given to the official, and (4) whether the official violated an" }, { "docid": "21665270", "title": "", "text": "to do, which was to continue the contract. McDonnell Douglas Corp., 35 Fed.Cl. at 368 n. 13. The termination letter stated that plaintiffs were being terminated for “inability to complete the design, development, fabrication, assembly and test of the A-12 aircraft within the contract schedule and the Team’s inability to deliver an aircraft that meets contract requirements.” Id. at 368. The letter stated, the Team is in default of the contract for having failed to make progress and not meeting contract requirements. The A-12 aircraft will not be delivered within the contract schedule nor will it meet the weight guaranty contained within the contract specification. The contractors sued for relief on a number of bases, and the parties agreed to litigate a potentially dispositive issue first. That was Count 17, which challenged the manner in which the Navy terminated the contract for default. We ruled that the default termination was improper because we found from testimony and other evidence that Admiral Morris was not permitted to exercise reasoned discretion. Id. at 375. We found that the termination for default was not related to performance. Id. at 377. The Navy was the contracting agency, and it did not believe that the contractors’ performance justified termination for default. The Federal Circuit found that “the government’s default termination was not pre-textual or unrelated to Contractors’ alleged inability to fulfill their obligations under the contract.” McDonnell Douglas Corp., 182 F.3d at 1326. The Circuit’s opinion states that “the government’s decision to terminate the A-12 FSD Contract for default was related to contract performance .... ” Id. at 1326-27. It directed us to determine whether the contractors were in default of the A-12 contract. “[I]f the government can establish that Contractors were in default, then the termination for default would be valid, (citation omitted). Conversely, if the government is not able to make this showing, then the default termination was invalid ____” Id. at 1329. We tried this issue for 6 weeks in May and June 2001. The Government argued that it was not limited to the bases for default found in the cure notice." }, { "docid": "10824296", "title": "", "text": "Service), 83-1 BCA ¶ 16,218, PSBCA No. 1023, 1982 WL 7294 (Dec. 30, 1982)). The Postal Service Board of Contract Appeals (PSBCA) has stated: “ ‘The need for delivery of the mails necessitates a strong control over performance by the Postal Service.’ ” Road Service, 83-1 BCA ¶ 16,218 at 80,587 (citation omitted). The cases cited by defendant, however, differ in significant ways from the case before this court, namely, in the fact that they involve terminated contractors with the USPS who argued that their nonperformance was excusable, and not a contractor, like Ms. Pinckney, who disputes, with evidentiary support, the underlying factual basis for the termination. See In re Greene, 07-1 BCA ¶ 33,471 at 165,928; Road Service, 83-1 BCA ¶ 16,218 at 80,587-88. Defendant also cites to McDonnell Douglas I for the proposition that “[a] clear violation of contract terms by the contractor supports a finding that a reasonable, contract-related basis for the termination exists.” Def.’s Br. 16 (citing McDonnell Douglas I, 182 F.3d at 1328). However, there is not a clear violation of the contract terms in this case; the issue of whether plaintiff delivered all deliverable mail on July 2, 2005 is contested in the evidence. See Pinckney I, 81 Fed.Cl. at 218. In Road Service, evidence of the route irregularities of the employee terminated by the USPS for default were recorded on Form 5500s. Road Service, 83-1 BCA ¶ 16,218 at 80,586. The terminated employee failed to return the Form 5500s or to provide adequate explanations for the reported irregularities. Id. Importantly, in Road Service, the existence of the nonperformance was not at issue, rather the issue centered on whether the nonperformance was excusable. Id. at 80,587. While the employee blamed his nonperformance on the weather, the evidence showed that federal workers reported to work that day and that commercial travel was operating as well. Id. at 80,587-88. Likewise, in In re Greene, there was no dispute as to whether the terminated employee had taken the actions underlying his termination, specifically, omitting trips and combining the mail for more than one trip on one truck." }, { "docid": "3740505", "title": "", "text": "is arbitrary and capricious, and thus an abuse of the contracting officer’s discretion. This proposition itself is but part of the well established law governing abuse of discretion by a contracting official. See, e.g., United States Fidelity & Guaranty Co. v. United States, 230 Ct.Cl. 355, 676 F.2d 622, 630 (1982) (listing four factors to be used in determining if conduct by a government official is arbitrary and capricious: (1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision, (3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation). B The record shows that the government’s default termination was not pretextual or unrelated to Contractors’ alleged inability to fulfill their obligations under the contract. Therefore, unlike the cases cited above, the government’s decision to terminate the A-12 FSD Contract for de fault was related to contract performance, and the Court of Federal Claims erred by converting the termination into one for convenience without first addressing the question of breach. First, the trial court interpreted the Navy’s actions prior to termination to evince a desire not to terminate the A-12 program for default, but rather to continue the contract. See McDonnell Douglas IV, 35 Fed.Cl. at 370. For example, the trial court noted that the government had overlooked Contractors’ alleged default for several months, had unilaterally modified the contract to excuse the missed delivery date for the first aircraft, and had determined that even though the aircraft would be overweight, it would still meet operational requirements. See id. at 370, 373-74. Moreover, the trial court noted that the Navy “did not contemplate issuing a cure notice in December [1990]” and “did not believe the contractors’ performance justified termination.” Id. at 370. The trial court’s factual findings do in fact establish that the Navy did not want to terminate the A-12 program. Instead, at all times up until the very end, the Navy hoped to preserve the program and its A-12 aircraft. That is not to say," }, { "docid": "329809", "title": "", "text": "default was justified by plaintiffs failure to perform the terms of the contract. We have already mentioned that the government has a right to insist on strict compliance with contract specifications and that failure to do so may place the contractor in default. See McDonnell Douglas, 182 F.3d at 1328. Section H.5.a of the contract specifically provides that the contract may be terminated for “[t]he supplier’s failure to perform service according to the terms of the contract.” Defendant points to approximately fifty irregularity reports to demonstrate that the decision to terminate was justifiably based on plaintiffs unsatisfactory performance of the contract. Among the deficiencies were failure to provide service on six occasions, failure to wear the proper uniform, failure to properly screen employees, and failure to maintain motor vehicle insurance. The contracting officer’s letter informing plaintiff of the final decision to terminate his contract does not explicitly state that a violation of Section H.5.a was a basis for the decision. Nevertheless, at the conference held on January 26, 2005, plaintiff was warned that continued unsatisfactory performance of the contract “may lead to ... termination of [his] contract.” Memorandum for the File on Unsatisfactory Service Conference at 5. Despite the warning, plaintiff continued to have irregularities, including his failure to screen an employee and late arrivals. We agree with defendant that plaintiffs failure to meet contract requirements, along with plaintiffs violation of a Postal regulation and failure to maintain good character, justify the contracting officer’s decision to terminate the contract. The government has established its grounds for default, relying on affidavits and documents which would be admissible under the Rules of Evidence. The burden then shifts to plaintiff to show the default was excused. Plaintiff has not done so. Although we could rest on the fact that plaintiff has not responded to demonstrate that the default was excused under the terms of the contract, we have nevertheless reviewed the complaint, as plaintiff brought this suit pro se. Even after reviewing the complaint, however, and assuming plaintiffs allegations therein to be correct, there are no specific allegations that the default was excused," }, { "docid": "7890167", "title": "", "text": "evidence of default itself is tainted by bad faith”). Government agents are presumed, however, to discharge their duties in good faith. Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed.Cir.1986); Kalvar Corp. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301 (1976). To rebut that presumption and to establish that the government indeed terminated a contract in bad faith requires “irrefragable proof.” Abcon Associates, 49 Fed.Cl. at 687-88 (citing Kalvar Corporation, 543 F.2d at 1301-02). Initially, the government bears the burden to show that a default termination was justified because the contractor was in breach at the time of termination. Lanterman, 75 Fed.Cl. at 733 (citing Lisbon, 828 F.2d at 765). A nexus between the government’s decision to terminate for default and the contractor’s performance is required, and the government may not use default as a pretext for terminating a contract for reasons unrelated to contract performance. McDonnell Douglas, 182 F.3d at 1329. One of the questions relevant to a contractor’s alleged default is whether the contractor has met contract specifications. Lanterman, 75 Fed.Cl. at 734 (citing McDonnell Douglas, 182 F.3d at 1328) (stating in turn that “[fjailure to meet contract specifications and inability to meet the contract delivery schedule are of course relevant considerations to whether a contractor is in default”). A clear violation of contract terms by the contractor supports a finding that a reasonable, contract-related basis for the termination exists. See McDonnell Douglas, 182 F.3d at 1328. If the government succeeds in proving default, the plaintiff then must demonstrate “that the default was excusable under the terms of the contract.” Airport Indus. Park, Inc. v. United States, 59 Fed.Cl. 332, 338 (2004); see Kennedy v. United States, 164 Ct.Cl. 507, 512, 1964 WL 8588 (1964). This can be done, for example, by showing that improper government actions were the primary or controlling cause of the default and rendered the contractor financially unable to perform. Abcon Associates, 49 Fed.Cl. at 687 (citing TGC Contracting Corp. v. United States, 736 F.2d 1512 (Fed.Cir.1984); Nat'l Eastern Corp. v. United States, 201 Ct.Cl. 776, 477 F.2d 1347, 1356 (1973)). Here, the" }, { "docid": "7890164", "title": "", "text": "decision to deny each of its certified claims, particularly those which alleged a breach of contract and bad faith by the government. The court must also review these claims de novo. 41 U.S.C. § 609(a)(3). All of KI’s requests for review hinge on plaintiff’s allegation that USPS breached the contract by adding new mailboxes to KI’s route without mutual agreement, and by taking deductions from KI’s pay as a result of its refusal to service those boxes. Plaintiff argues that those breaches entitled it to cease performance, and that USPS improperly terminated the contract for default based on KI’s refusal to perform. The United States responds, however, that KI alone breached the contract when it refused to deliver mail to the new boxes, and when it stopped performing altogether. Based on those failures, defendant argues that the CO was entitled to terminate the contract for default. It is well-settled that a contracting officer has broad discretion to terminate a contract for default. Lanterman v. United States, 75 Fed.Cl. 731, 733 (2007) (citing Consol. Indus., Inc. v. United States, 195 F.3d 1341, 1343 (Fed.Cir.1999)). However, termination for default is “a drastic sanction which should be imposed (or sustained) only for good grounds and on solid evidence.” Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987) (internal citation omitted). The default provision of a government contract does not require termination after a finding of default, but instead, provides the agency with discretion to do so, so long as that discretion is exercised reasonably. Abcon Assocs., Inc. v. United States, 49 Fed.Cl. 678, 686 (2001) (citing Darwin Constr. Co. v. United States, 811 F.2d 593, 596 (Fed.Cir.1987)). Thus, the decision to terminate a government contract for default may be overturned if it is arbitrary, capricious, or an abuse of discretion. Lanterman, 75 Fed.Cl. at 733 (citing Consolidated Industries, 195 F.3d at 1343-44). Four factors serve as guideposts in determining whether a contracting officer’s decision was reasonable: (1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision," }, { "docid": "7890165", "title": "", "text": "v. United States, 195 F.3d 1341, 1343 (Fed.Cir.1999)). However, termination for default is “a drastic sanction which should be imposed (or sustained) only for good grounds and on solid evidence.” Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987) (internal citation omitted). The default provision of a government contract does not require termination after a finding of default, but instead, provides the agency with discretion to do so, so long as that discretion is exercised reasonably. Abcon Assocs., Inc. v. United States, 49 Fed.Cl. 678, 686 (2001) (citing Darwin Constr. Co. v. United States, 811 F.2d 593, 596 (Fed.Cir.1987)). Thus, the decision to terminate a government contract for default may be overturned if it is arbitrary, capricious, or an abuse of discretion. Lanterman, 75 Fed.Cl. at 733 (citing Consolidated Industries, 195 F.3d at 1343-44). Four factors serve as guideposts in determining whether a contracting officer’s decision was reasonable: (1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision, (3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation. McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1326 (Fed.Cir.1999) (paraphrasing U.S. Fid. & Guar. Co. v. United States, 230 Ct.Cl. 355, 676 F.2d 622, 630 (1982)). There is no question that, in cases in which a contracting officer exercises his or her discretion to terminate a contract for default, that decision must be “honestly rendered.” Moreland, 76 Fed.Cl. at 284 (internal quotations omitted). Thus, even in eases in which a contractor has technically defaulted on its contractual obligations, the court will not uphold a default termination where the agency has acted in bad faith in administering the contract. Id. at 293; Libertatia Assocs., Inc. v. United States, 46 Fed.Cl. 702, 712 (2000) (stating that “[i]n view of the court’s finding of bad faith on the part of the government, it is difficult—if not impossible—to assess whether the administration of the contract and the resulting termination for default was arbitrary and capricious because the" }, { "docid": "329808", "title": "", "text": "contracts described plaintiffs behavior with respect to a postal employee, Ms. Chaney. Plaintiff “approached Ms. Chaney at the Mentone Post office and made romantic overtures to her,” and even after he was “warned that [his] behavior was extremely inappropriate and unwanted, [he] would not leave Ms. Chaney alone.” Letter from Robert J. Sax-ton, Manager, Transp. Contracts, United States Postal Service, to George Lanterman, Jr. (Sept. 28, 2004). Because of this conduct, a temporary restraining order was issued to keep plaintiff from approaching Ms. Chaney again. Additionally, the letter discussed other “alleged past angry outbursts with postal officials at the Forest Falls and Angelus Oaks post offices.” Id. Plaintiff was told that his actions were “disturbing” and that the Manager was “quite concerned about the safety and welfare of all involved.” Id. This is precisely the kind of disorderly behavior described in 39 C.F.R. § 232.1(e). Such conduct would be grounds for a termination for default under Sobiecki. We likewise find here that the contracting officer’s decision was justified. Defendant also claims that the termination for default was justified by plaintiffs failure to perform the terms of the contract. We have already mentioned that the government has a right to insist on strict compliance with contract specifications and that failure to do so may place the contractor in default. See McDonnell Douglas, 182 F.3d at 1328. Section H.5.a of the contract specifically provides that the contract may be terminated for “[t]he supplier’s failure to perform service according to the terms of the contract.” Defendant points to approximately fifty irregularity reports to demonstrate that the decision to terminate was justifiably based on plaintiffs unsatisfactory performance of the contract. Among the deficiencies were failure to provide service on six occasions, failure to wear the proper uniform, failure to properly screen employees, and failure to maintain motor vehicle insurance. The contracting officer’s letter informing plaintiff of the final decision to terminate his contract does not explicitly state that a violation of Section H.5.a was a basis for the decision. Nevertheless, at the conference held on January 26, 2005, plaintiff was warned that continued unsatisfactory" }, { "docid": "21665271", "title": "", "text": "the termination for default was not related to performance. Id. at 377. The Navy was the contracting agency, and it did not believe that the contractors’ performance justified termination for default. The Federal Circuit found that “the government’s default termination was not pre-textual or unrelated to Contractors’ alleged inability to fulfill their obligations under the contract.” McDonnell Douglas Corp., 182 F.3d at 1326. The Circuit’s opinion states that “the government’s decision to terminate the A-12 FSD Contract for default was related to contract performance .... ” Id. at 1326-27. It directed us to determine whether the contractors were in default of the A-12 contract. “[I]f the government can establish that Contractors were in default, then the termination for default would be valid, (citation omitted). Conversely, if the government is not able to make this showing, then the default termination was invalid ____” Id. at 1329. We tried this issue for 6 weeks in May and June 2001. The Government argued that it was not limited to the bases for default found in the cure notice. That does not matter because the only reason for default that can be sustained happens to be in the cure notice: schedule. As noted above, plaintiffs would not have met the December 1991 schedule, known as P00046. We find that this schedule was reasonable. II. DISCUSSION A. Schedule The default notice issued on January 7, 1991 stated that termination of plaintiffs’ contract was based in part on plaintiffs’ “inability to complete the design, development, fabrication, assembly and test of the A-12 aircraft within the contract schedule .... ” The Federal Circuit stated that Admiral Morris believed the contractors could not meet the delivery schedule, and that he “believed [the] Contractors to be in material breach of the contract.” McDonnell Douglas Corp., 182 F.3d at 1327. The schedule established by the Best and Final Offer provided that the first FSED aircraft was due in June 1990, and the remaining aircraft would be delivered monthly through January 1991. The contractors experienced problems in performance of the contract from its inception, “namely controlling the growth of the aircraft" }, { "docid": "7890168", "title": "", "text": "734 (citing McDonnell Douglas, 182 F.3d at 1328) (stating in turn that “[fjailure to meet contract specifications and inability to meet the contract delivery schedule are of course relevant considerations to whether a contractor is in default”). A clear violation of contract terms by the contractor supports a finding that a reasonable, contract-related basis for the termination exists. See McDonnell Douglas, 182 F.3d at 1328. If the government succeeds in proving default, the plaintiff then must demonstrate “that the default was excusable under the terms of the contract.” Airport Indus. Park, Inc. v. United States, 59 Fed.Cl. 332, 338 (2004); see Kennedy v. United States, 164 Ct.Cl. 507, 512, 1964 WL 8588 (1964). This can be done, for example, by showing that improper government actions were the primary or controlling cause of the default and rendered the contractor financially unable to perform. Abcon Associates, 49 Fed.Cl. at 687 (citing TGC Contracting Corp. v. United States, 736 F.2d 1512 (Fed.Cir.1984); Nat'l Eastern Corp. v. United States, 201 Ct.Cl. 776, 477 F.2d 1347, 1356 (1973)). Here, the CO terminated the contract for default based on KI’s abandonment of its duties, specifically, plaintiffs complete failure to perform after February 20, 2004. KI admits that it ceased performance on that date. Generally, a complete failure to perform is equivalent to a repudiation of contractual duties. Dow Chem. Co. v. United States, 226 F.3d 1334, 1344 (Fed.Cir.2000) (explaining that “[repudiation occurs when one party refuses to perform and communicates that refusal distinctly and unqualifiedly to the other party”) (citing United States v. Dekonty Corp., 922 F.2d 826, 827-28 (Fed.Cir.1991)). Such a repudiation would, in fact, entitle the government to terminate a contract. Id. (stating that, when an injured party is faced with a repudiation, it can choose between terminating or continuing the contract) (citing St. Paul Plow-Works v. Starling, 140 U.S. 184, 11 S.Ct. 803, 35 L.Ed. 404 (1891); McDonnell Douglas, 182 F.3d at 1327; Cities Serv. Helex, Inc. v. United States, 211 Ct.Cl. 222, 543 F.2d 1306, 1313 (1976)). Indeed, there is no question that a breach of contract by repudiation constitutes a reasonable" }, { "docid": "13539150", "title": "", "text": "chosen contract type to which the plaintiff agreed. See Beacon Constr. Co. v. United States, 161 Ct.Cl. at 7, 314 F.2d at 504 (1963); see also S.J. Amoroso Constr. Co. v. United States, 12 F.3d 1072, 1076 (Fed.Cir. 1993). VII. Claims in Case No. 96-442C PCL claims that USBR’s action to terminate the contract was improper for a number of reasons. First, PCL claims that USBR had accepted the project at the time of the termination and had begun to occupy the premises. Second, PCL claims that the contract could not be terminated for default after the contract was deemed substantially complete. Finally, PCL claims that the contracting officer abused her discretion in terminating PCL for default. A default termination is a remedy to which the Government should not lightly resort. Decker & Co. v. West, 76 F.3d 1573, 1580 (Fed.Cir.1996). “[W]hether [a] default termination is proper depends upon the facts and circumstances of each case.” Olson Plumbing & Heating Co. v. United States, 221 Ct.Cl. 197, 204, 602 F.2d 950, 955 (1979); see also J.D. Hedin Constr. Co. v. United States, 187 Ct.Cl. at 57, 408 F.2d at 431 (“[D]efault-termination is a drastic sanction, which should be imposed (or sustained) only for good grounds and on solid evidence.” (citation omitted)); Libertatia Assocs., Inc. v. United States, 46 Fed.Cl. 702, 705 (2000); CJP Contractors, Inc. v. United States, 45 Fed.Cl. 343, 371 (1999). “[T]he government may not use default as a pretext for terminating a contract for reasons unrelated to performance; instead, there must be a nexus between the government’s decision to terminate for default and the contractor’s performance.” McDonnell Douglas Corp. v. United States, 182 F.3d 1319,1329 (Fed.Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1831, 146 L.Ed.2d 775 (2000). The contractor’s performance can be examined with an eye to fundamental elements of performance such as contract specifications, contract schedule, and price. See id. The government bears the burden of proof with respect to the issue of whether a termination for default was justified. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987). The termination for default" }, { "docid": "13539151", "title": "", "text": "J.D. Hedin Constr. Co. v. United States, 187 Ct.Cl. at 57, 408 F.2d at 431 (“[D]efault-termination is a drastic sanction, which should be imposed (or sustained) only for good grounds and on solid evidence.” (citation omitted)); Libertatia Assocs., Inc. v. United States, 46 Fed.Cl. 702, 705 (2000); CJP Contractors, Inc. v. United States, 45 Fed.Cl. 343, 371 (1999). “[T]he government may not use default as a pretext for terminating a contract for reasons unrelated to performance; instead, there must be a nexus between the government’s decision to terminate for default and the contractor’s performance.” McDonnell Douglas Corp. v. United States, 182 F.3d 1319,1329 (Fed.Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1831, 146 L.Ed.2d 775 (2000). The contractor’s performance can be examined with an eye to fundamental elements of performance such as contract specifications, contract schedule, and price. See id. The government bears the burden of proof with respect to the issue of whether a termination for default was justified. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987). The termination for default clause, FAR § 52.249-10(a) (contained in PCL’s contract at 1.2.24), provides the government with the power to terminate the contract for default without reference to any time or degree-of-completion limitation: If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed. 48 C.F.R. § 52.249-10(a) (1990) (Fixed-Price Construction). It has been found that abandoning work on a contract without correcting deficiencies in a punch list justifies a default termination. See M.C. & D. Capital Corp. v. United States, 948 F.2d 1251, 1256 (Fed.Cir. 1991); G. A. Karnavas Painting Co., V.A.C.A.B. No. 992, 72-1 B.C.A. ¶ 9369,1972 WL 1605 (1972) (“Correction of the punch list items in this case is established as a contrac tual obligation of Appellant," }, { "docid": "21665311", "title": "", "text": "defendant could put on a rebuttal case to address that evidence. Plaintiffs did not present such evidence. In fact, plaintiffs’ position has been that building the A-12 was not impossible; it would have flown in March 1992. V. CONCLUSION The United States asked two major defense contractors with impeccable ereden-tials and long histories of government service to undertake a complex and highly sensitive research and development project involving stealth technology. It worked closely with those contractors on a daily basis, on all aspects of the design and manufacture. It worked through the Navy because the Navy was the contracting agency. For reasons that do not appear in the record of this case in their entirety, the Government abruptly terminated the contractors for default. Admiral Morris, the Navy contracting officer did not want to terminate the contract between the Navy and contractors. He wanted to work out all the problems within the four corners of the contract, as he put it. He was not allowed that option. We found that Admiral Morris had no choice but to terminate the contract. He also felt that he had to terminate for default — a grievous sanction. The Federal Circuit ruled that Admiral Morris terminated the contract for performance-related reasons, and that his actions were products of his independent discretion. That being the law of the case, we must rule for defendant. This is so because the unilateral schedule was reasonable, and if the Contracting Officer was concerned about whether the contractors would meet the schedule, that concern is a legitimate basis for terminating the contract for default. The Clerk will enter judgment for defendant. No costs. . For a full factual background see McDonnell Douglas Corp. v. United States, 35 Fed.Cl. 358 (1996) (see also McDonnell Douglas Corp., 182 F.3d 1319 (Fed.Cir.1999)). . Pub.L. No. 85-804 grants the President of the United States the power to authorize agencies or departments to provide extraordinary relief if doing so would promote national defense. See 50 U.S.C. § 1431 (1994). See also McDonnell Douglas Corp., 182 F.3d at 1323. . This suggests that Mr. Yockey at" }, { "docid": "10824265", "title": "", "text": "applicable statute or regulation.” McDonnell Douglas I, 182 F.3d at 1326. If the government meets its burden of proving that a termination for default was justified, the burden shifts to the contractor to show that the non-performance was excused. Keeter Trading Co. v. United States (Keeter I), 79 Fed.Cl. 243, 253 (2007) (“If the government succeeds in proving default, the plaintiff then must demonstrate ‘that the default was excusable under the terms of the contract.’” (quoting Airport Indus. Park, Inc. v. United States, 59 Fed.Cl. 332, 338 (2004))); Lassiter v. United States, 60 Fed.Cl. 265, 268 (2004). A plaintiff can show the default was excusable “by showing that improper government actions were the primary or controlling cause of the default.” Keeter I, 79 Fed.Cl. at 253. If the court determines that the termination for default was improper, the termination for default is converted into a termination for convenience. Id. at 262. Damages for a termination for convenience “are limited to costs incurred prior to termination, a reasonable profit on work performed, and certain additional costs associated with termination.” Id. However, if plaintiff can demonstrate that the decision to terminate the contract was made in bad faith, traditional breach of contract damages may be awarded. Id. at 263. The goal of such damages is to “plac[e] the injured party in as good as position as it would have been had the breaching party fully performed.” Id. “[E]ven in cases in which a contractor has technically defaulted on its contractual obligations, the court will not uphold a default termination where the agency has acted in bad faith in administering the contract.” Id. at 252 (citing Moreland Corp. v. United States, 76 Fed.Cl. 268, 293 (2007) and Libertatia Assocs., Inc. v. United States (Libertatia), 46 Fed.Cl. 702, 712 (2000)). “The covenant of good faith and fair dealing is an implied duty that each party to a contract owes to its contracting partner.” Centex Corp. v. United States (Centex), 395 F.3d 1283, 1304 (Fed.Cir.2005). Agents of the government are presumed to “discharge their duties in good faith.” Keeter I, 79 Fed.Cl. at 252; Libertatia," }, { "docid": "7915129", "title": "", "text": "a default under the alternative theory. Empire urges that McDonnell Douglas adopted a special rule for terminations for failure to make progress, requiring analysis of “the contracting officer’s reasonable belief,” 323 F.3d at 1017, rather than objective considerations. In McDonnell Douglas, two contractors who were awarded a contract to design and build aircraft carrier-based stealth aircraft were terminated for default when they failed to meet an extended deadline to deliver the first aircraft. Id. at 1010-11. The delivery of the first aircraft was merely an interim milestone, not the ultimate performance requirement of the contract. Nevertheless, the government terminated for failure to make progress. Id. at 1015. We held that, in such cases, a default cannot be declared simply because the contractor has failed to meet an interim milestone. The default provision “requirefs] reasonable belief on the part of the contracting officer that there was no reasonable likelihood that the contractor could perform the entire contract effort within the time remaining for contract performance.” Id. at 1016 (quoting Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.Cir.1987)). Thus, Empire argues, the contracting officer could not properly have terminated for failure to make progress because she did not specifically consider whether Empire could have completed the project within the period of excusable delay. This argument finds no support in our previous decisions. We have expressly held that the government must show in termination for failure to make progress cases “that it was reasonable for the [government] to conclude that [the contractor] would be unable to complete the project by what the Board found to be the proper completion date.” Danzig v. AEC Corp., 224 F.3d 1333, 1336 (Fed.Cir.2000) (emphasis added); see also Lisbon, 828 F.2d at 765. McDonnell Douglas is not to the contrary. Indeed, McDonnell Douglas demands an objective inquiry, not an evaluation of the contracting officer’s subjective beliefs. 323 F.3d at 1016 (“[A] court’s review of default justification does not turn on the contracting officer’s subjective beliefs, but rather requires an objective inquiry.”). It requires the court to consider whether the contracting officer’s decision to terminate for" }, { "docid": "10824264", "title": "", "text": "979, 990, 413 F.2d 1147, 1153 (1969)). The burden is on the government to prove by a preponderance of the evidence that a termination for default was justified. Lisbon Contractors, Inc. v. United States (Lisbon), 828 F.2d 759, 765 (Fed.Cir.1987). “[T]here must be a nexus between the government’s decision to terminate for default and the contractor’s performance.” McDonnell Douglas Corp. v. United States (McDonnell Douglas I), 182 F.3d 1319, 1329 (Fed. Cir.1999). However, a “contracting officer has broad discretion to determine whether to terminate a contract for default” and this decision will be overturned only if it is “ ‘arbitrary, capricious, or constitutes an abuse of discretion.’” Consol. Indus., Inc. v. United States, 195 F.3d 1341, 1343-44 (Fed.Cir.1999) (quoting McDonnell Douglas I, 182 F.3d at 1326). There are four factors relevant to this determination: “(1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the official’s decision, (3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation.” McDonnell Douglas I, 182 F.3d at 1326. If the government meets its burden of proving that a termination for default was justified, the burden shifts to the contractor to show that the non-performance was excused. Keeter Trading Co. v. United States (Keeter I), 79 Fed.Cl. 243, 253 (2007) (“If the government succeeds in proving default, the plaintiff then must demonstrate ‘that the default was excusable under the terms of the contract.’” (quoting Airport Indus. Park, Inc. v. United States, 59 Fed.Cl. 332, 338 (2004))); Lassiter v. United States, 60 Fed.Cl. 265, 268 (2004). A plaintiff can show the default was excusable “by showing that improper government actions were the primary or controlling cause of the default.” Keeter I, 79 Fed.Cl. at 253. If the court determines that the termination for default was improper, the termination for default is converted into a termination for convenience. Id. at 262. Damages for a termination for convenience “are limited to costs incurred prior to termination, a reasonable profit on work performed, and certain additional costs" } ]

[ { "docid": "13204927", "title": "", "text": "ORDER DISMISSING ADVERSARY PROCEEDING JACK CADDELL, Bankruptcy Judge. On May 10, 2001, the debtors filed a bankruptcy petition under Chapter 13 of the Bankruptcy Code. Three months later on August 2, 2001, the debtor, Cleopha Pair, filed this adversary proceeding to partially discharge $8,000.00 of a $15,281.61 student loan obligation as being an undue hardship under 11 U.S.C. § 523(a)(8). The defendant, Educational Credit Management Corporation (“ECMC”), filed a motion to dismiss the complaint on the ground that the issue is not ripe for adjudication at this time. ECMC contends that a complaint under § 523(a)(8) should be filed at the end of a Chapter 13 case because a Chapter 13 debtor is not entitled to receive a discharge under 11 U.S.C. § 1328(a) until plan payments are completed. At the hearing on ECMC’s motion to dismiss, the debtor asked the Court for an opportunity to brief the issue and to then take the matter under advisement. To establish undue hardship, this Court has followed the three-part test set forth in Brunner v. New York State Higher Educ., 831 F.2d 395, 396 (2nd Cir.1987) under which a debtor must show: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. In Raisor v. Education Loan Servicing Center (In re Raisor), 180 B.R. 163 (Bankr.E.D.Tex.1995), the bankruptcy court determined that it is impossible to address the Brunner factors in a Chapter 13 case until near or at the time the plan is scheduled for completion. The court recognized that it is impossible to determine whether a Chapter 13 debtor will be able to maintain a minimal standard of living after receiving a discharge because the debtor’s income could increase during the three to five year life of a Chapter 13 plan. Further," } ]

[ { "docid": "4149595", "title": "", "text": "time, Soler has made payments to Sallie Mae on the three HHS loans and the consolidation loan, totaling $75,754.79. She presently owes $124,008.84. Soler brought this adversary proceeding to have the dischargeability of her student loans determined under 11 U.S.C. § 523(a)(8) and 42 U.S.C. § 294(g). She has withdrawn her original plan but in this adversary proceeding suggests that she will propose a Chapter 13 plan which would include five years of $1,400 monthly payments for a total of $84,000, virtually all of which would be paid to the defendants. In this adversary proceeding she seeks a determination that the balance of her student loans would be discharged. The United States moved to dismiss Sol-er’s complaint for failure to state a claim upon which relief can be granted. DISCUSSION The United States’ essentially makes the argument that Soler’s complaint is not ripe because a discharge is distant and uncertain. Soler may not get a plan confirmed or she may not complete payments under the plan and receive a discharge. Soler’s circumstances may change in five years, particularly her income, and the result of a determination of undue hardship under 11 U.S.C. § 523(a)(8) or unconscionability under 42 U.S.C. § 294f(g) may be different in five years than a dischargeability determination under the same sections today. The United States cites a number of cases in support of its argument that determination of the dischargeability of a Chapter 13 debtor’s educational loans is not ripe until successful completion of a plan. In Raisor v. Education Loan Servicing Center, Inc. (In re Raisor), 180 B.R. 163, 166-67 (Bankr.E.D.Tex.1995), the bankruptcy court concluded that because a Chapter 13 debtor is generally not entitled to a discharge until after completion of payments under a confirmed plan, “the issue of dischargeability is not ripe under Chapter 13 until either after the Chapter 13 plan has been successfully completed or the debtor has applied for a hardship discharge under § 1328(b).” The Raisor court relied on a Fifth Circuit decision stating the same, with respect to dischargeability in a Chapter 13 case under § 523(a)(2)(A), in" }, { "docid": "18113344", "title": "", "text": "523(a)(8). See Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir.1987) (per curiam). Under this test, the debtor must establish (1) that he cannot maintain a minimal standard of living for himself and his dependents, based upon his current income and expenses, if he is required to repay the student loans; (2) that additional circumstances indicate that his inability to do so is likely to exist for a significant portion of the repayment period of the student loans; and (3) that he has made good faith efforts to repay the loans. See id. at 396. III. We first address Appellants’ contention that Ekenasi’s adversary proceeding seeking a discharge of his student loan obligations as an “undue hardship” was premature. More specifically, they urge us to follow those courts that have held that student loan hardship cases are never ripe for adjudication in a Chapter 13 case until near or at the time of completion of the Chapter 13 plan. See Pair v. United States (In re Pair), 269 B.R. 719, 720-21 (Bankr.N.D.Ala.2001); Soler v. United States (In re Soler), 250 B.R. 694, 697 (Bankr.D.Minn.2000); Raisor v. Education Loan Servicing Ctr., Inc. (In re Raisor), 180 B.R. 163, 167 (Bankr.E.D.Tex.1995). Appellants argue that this interpretation is implicit in the language of §§ 1328 and 523(a)(8), which focuses on the debtor’s circumstances at the point of discharge. Ekenasi, on the other hand, urges us to follow those cases that allow a debtor to seek a hardship determination at any time of his choosing. He contends the debtor may choose “the date of the ‘snapshot’ which the [cjourt must examine for Brun-ner purposes.” Goranson v. Pennsylvania Higher Educ. Assistance Agency (In re Goranson), 183 B.R. 52, 56 (Bankr.W.D.N.Y.1995); see United Student Aid Funds, Inc. v. Taylor (In re Taylor), 223 B.R. 747, 751 (B.A.P. 9th Cir.1998). As Appellants correctly observe, the Brunner factors, which were developed in the context of an adversary proceeding brought to discharge student loan obligations at the conclusion of a Chapter 7 proceeding, do not transfer neatly to an adversary proceeding brought to" }, { "docid": "18113353", "title": "", "text": "he “has made good faith efforts to repay the loans,” Brunner, 831 F.2d at 396, and that the bankruptcy court clearly erred in finding otherwise. Of particular note, Ekenasi obtained approval of the Chapter 13 Plan to pay $300 in disposable income to unsecured creditors other than student loan creditors based upon his election to pay $253 to the student loan creditors outside the Plan. Although he presented evidence of his good faith attempts to pay the student loan payments prior to filing his Chapter 13 petition and Plan, he has not presented such evidence of a good faith attempt to make the student loan payments he included in the confirmed Chapter 13 Plan. Instead, Ekenasi filed the adversary proceeding to discharge the student loan debt in its entirety within a mere three months of obtaining that confirmation. Cf. Brunner v. New York State Higher Educ. Servs. Corp. (In re Brunner), 46 B.R. 752, 758 (S.D.N.Y.1985) (finding that debtor failed to establish good faith in a Chapter 7 proceeding where she “filed for discharge within a month of the date the first payment of her loans came due ... [,] made virtually no attempt to repay, [and never] requested a deferment of payment”). C. To conclude, although we decline to hold that Chapter 13 precludes a bankruptcy court from ever entertaining an adversary proceeding to discharge student loan debts until at or near the time that the debtor completes payments under a confirmed Chapter 13 plan, we are satisfied that the bankruptcy court clearly erred in finding that Ekenasi had established undue hardship under Brunner upon the record before it. After emigrating to this country, Ekenasi sought and obtained a post-graduate, specialized education made possible by government-sponsored student loans. As a result of his education, he made a successful career transition from taxi driver to state-employed attorney. His financial circumstances are serious, especially given his paternal obligations. However, it does not appear that they are more serious or dire than they were before he entered law school. Although the record on this point is not as developed as it should" }, { "docid": "18506216", "title": "", "text": "student loans, without clarifying that the discharge-ability determination could not be made prior to plan completion in the latter case. See Taylor, 223 B.R. at 751. . Several bankruptcy courts have also agreed with that approach. See, e.g., In re Pair, 269 B.R. 719, 721 (Bankr.N.D.Ala.2001); In re Soler, 250 B.R. 694, 697 (Bankr.D.Minn.2000); In re Raisor, 180 B.R. 163, 166 (Bankr.E.D.Tex.1995). . See 11 U.S.C. § 727(b). . See, e.g., Lamia v. U.S. Trustee, 540 U.S. 526, 534-36, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). .Unlike Chapter 7 cases, attorneys' fees in Chapter 13 cases are normally paid out of the plan as an administrative expense. Bankruptcy Code 11 U.S.C. § 503(b)(2) allows administrative expense status for compensation awarded under Code § 330(a). Bankruptcy Code § 330(a) allows compensation for a pro fessional person employed under § 327. Although compensation under those provisions is limited to attorneys for the trustee, not for the debtor, Lamie, 540 U.S. at 534-36, 124 S.Ct. 1023, it is common for this distinction to be blurred in Chapter 13 cases because a Chapter 13 debtor exercises some of the powers of a trustee. 11 U.S.C. § 1303. This results in attorneys’ fees being paid as administrative expenses in Chapter 13 cases. Pursuant to 11 U.S.C. § 1326(b)(1), these fees are often paid early in the case. . See, e.g., Brunner v. N.Y. State Higher Educ. Serv. Corp. (In re Brunner), 46 B.R. 752, 753 (Bankr.S.D.N.Y. 1985), aff'd, 831 F.2d 395 (2d Cir.1987) (noting that \"[t]he existence of the adjective ‘undue’ indicates that Congress viewed garden-variety hardship as [an] insufficient excuse for a discharge of student loans”). . An additional reason for permitting undue hardship determinations to be made closer to the time of filing is that the amount of repayment to the student loan creditor through the plan may vary depending upon whether the loans are dischargeable. Section 1322(b)(1) provides that a plan may create a class of claims that is treated differently from other unsecured claims if the plan does not discriminate unfairly. Section 1322(b)(1) provides that a debtor’s plan may \"designate a" }, { "docid": "15021610", "title": "", "text": "1328(b) of this title does not discharge an individual debtor from any debt — ... (8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents[.] “Congress has not defined ‘undue hardship,’ leaving the task to the courts. Courts universally require more than temporary financial adversity and typically stop short of utter hopelessness.” Hornsby, 144 F.3d at 437. To decide whether a debtor will incur an undue hardship, many courts, including the bankruptcy court here, have followed the Brunner test. See In re Brunner, 46 B.R. 752, 756 (S.D.N.Y.1985), aff'd, 831 F.2d 395 (2d Cir.1987) (per curiam) (adopting district court test). Under Brunner the debtor must establish (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. Although the Fifth Circuit has yet to adopt Brunner, Judge Cummings of this court has applied this test, see McLeroy, 250 B.R. at 875, as have other courts in this circuit, see In re Poche, 1995 WL 688782, at *3 (E.D.La.1995); In re Coveney, 192 B.R. 140, 141 (Bankr.W.D.Tex.1996); In re Raisor, 180 B.R. 163, 166 (Bankr.E.D.Tex.1995); In re Stebbins-Hopf, 176 B.R. 784, 786-87 (Bankr.W.D.Tex.1994). Several circuit courts have adopted Brunner as the proper framework for deciding whether excepting a debt from discharge will impose an undue hardship on the debtor and his dependents. See In re Pena, 155 F.3d 1108, 1112 (9th Cir.1998); In re Faish, 72 F.3d" }, { "docid": "18113345", "title": "", "text": "719, 720-21 (Bankr.N.D.Ala.2001); Soler v. United States (In re Soler), 250 B.R. 694, 697 (Bankr.D.Minn.2000); Raisor v. Education Loan Servicing Ctr., Inc. (In re Raisor), 180 B.R. 163, 167 (Bankr.E.D.Tex.1995). Appellants argue that this interpretation is implicit in the language of §§ 1328 and 523(a)(8), which focuses on the debtor’s circumstances at the point of discharge. Ekenasi, on the other hand, urges us to follow those cases that allow a debtor to seek a hardship determination at any time of his choosing. He contends the debtor may choose “the date of the ‘snapshot’ which the [cjourt must examine for Brun-ner purposes.” Goranson v. Pennsylvania Higher Educ. Assistance Agency (In re Goranson), 183 B.R. 52, 56 (Bankr.W.D.N.Y.1995); see United Student Aid Funds, Inc. v. Taylor (In re Taylor), 223 B.R. 747, 751 (B.A.P. 9th Cir.1998). As Appellants correctly observe, the Brunner factors, which were developed in the context of an adversary proceeding brought to discharge student loan obligations at the conclusion of a Chapter 7 proceeding, do not transfer neatly to an adversary proceeding brought to discharge student loan obligations in the midst of the debtor’s attempts to comply with a confirmed Chapter 13 plan. Brunner requires the debtor to establish that he “cannot maintain, based on current income and expenses, a ‘minimal’ standard of living” for himself and his dependents if he is forced to repay the student loans and that this condition will “likely ... persist for a significant portion of the repayment period of the student loans.” Brunner, 831 F.2d at 396 (emphasis added). In a Chapter 7 case, the bankruptcy-proceeding is short-lived and the debtor achieves a quick discharge of his unsecured, dischargeable debts. Thus, predicting whether the debtor’s current inability to maintain a minimal standard of living will persist throughout a significant portion of the repayment period is based upon a known, current situation. Where an adversary proceeding seeking a discharge of student loan obligations is brought early in a Chapter 13 case, however, the question of whether the debtor will be unable to maintain a minimal standard of living throughout a significant portion of the" }, { "docid": "9359243", "title": "", "text": "384, 385 (Bankr.S.D.Fla.1999) (citing Mammel); In re Galey, 230 B.R. 898, 899 (Bankr.S.D.Ga.1999) (“Clearly, the Rules contemplate that determinations of dis- chargeability are within the scope of adversary proceedings. The inclusion of the specific mention of dischargeability in Rule 7001 strongly suggests that the omission of dischargeability determinations from 1322 was not accidental. Rather, the omission, read together with Rule 7001, constitutes a clear recognition that determinations of dischargeability cannot be obtained by simply inserting a provision to that effect in a Chapter 13 plan.”). Second, the debtor seeks to have his student loans declared dischargeable without satisfying the evidentiary elements of section 523(a)(8). See Mammel, 221 B.R. at 241; Hinton, 231 B.R. at 385. Pursuant to section 523(a)(8), debtors must demonstrate undue hardship in order to have their student loans discharged. This Court has adopted a three-part test to be used in determining when undue hardship exists. See Garrett v. New Hampshire Higher Educ. Assistance Found. (In re Garrett), 180 B.R. 358, 362 (Bankr.D.N.H.1995). Undue hardship requires a three-part showing that (1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good faith efforts to repay the loans. See id. (citing In re Roberson, 999 F.2d 1132, 1135 (7th Cir.1993) and Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir.1987) (per curiam)). “In order for [a debtor] to meet the first part of the test, [his] current financial condition must be analyzed to see if payment of the loans would cause [his] standard of living to fall below that which is minimally necessary.” Id. at 363; see also Barrows v. Illinois Student Assistance Comm’n (In re Barrows), 182 B.R. 640, 648-49 (Bankr.D.N.H.1994). “In order to meet the second requirement, [a debtor] must show that [he] will be unable to make the payments on the" }, { "docid": "18113343", "title": "", "text": "on those loans.” In re Kielisch, 258 F.3d at 319 (internal quotation marks omitted). However, Congress has also provided that such government-guaranteed student loans are nondischargeable in bankruptcy proceedings unless the debtor can demonstrate that repayment of the loans would constitute an “undue hardship.” 11 U.S.C.A. § 523(a)(8) (West Supp.2002). The exception of such government-sponsored student loan debts from discharge in bankruptcy “ ‘was enacted to prevent indebted college or graduate students from filing for bankruptcy immediately upon graduation, thereby absolving themselves of the obligation to repay their student loans.’ ” In re Kielisch, 258 F.3d at 320 (quoting Tennessee Student Assistance Corp. v. Hornsby (In re Hornsby), 144 F.3d 433, 436-37 (6th Cir.1998)). In order to determine the dischargeability of student loans, the debtor must bring an adversary proceeding, see Fed. R. Bankr.P. 7001(6), and prove undue hardship, see 11 U.S.C.A. §§ 523(a)(8), 1328(a)(2). Although the bankruptcy code does not define “undue hardship,” most courts have adopted a three-part test to determine whether a debtor has shown “undue hardship” within the meaning of § 523(a)(8). See Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir.1987) (per curiam). Under this test, the debtor must establish (1) that he cannot maintain a minimal standard of living for himself and his dependents, based upon his current income and expenses, if he is required to repay the student loans; (2) that additional circumstances indicate that his inability to do so is likely to exist for a significant portion of the repayment period of the student loans; and (3) that he has made good faith efforts to repay the loans. See id. at 396. III. We first address Appellants’ contention that Ekenasi’s adversary proceeding seeking a discharge of his student loan obligations as an “undue hardship” was premature. More specifically, they urge us to follow those courts that have held that student loan hardship cases are never ripe for adjudication in a Chapter 13 case until near or at the time of completion of the Chapter 13 plan. See Pair v. United States (In re Pair), 269 B.R." }, { "docid": "12612907", "title": "", "text": "may be nothing if the borrower has little income. The balance remaining after the 300 month period is deemed discharged. Plaintiffs would currently have to pay $187.94 per month under this plan. III. Discussion. Generally, student loans are not dis-chargeable in Chapter 13. 11 U.S.C. § 1328(a)(2); § 1328(b)(2). As provided by 11 U.S.C. § 523(a)(8), an individual debtor shall not be discharged from any debt: for an educational benefit, overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents .... In interpreting whether excepting a student loan from discharge under Section 523(a)(8) imposes an undue hardship on the debtor, the Ninth Circuit has adopted the so-called Brunner test. United Student Aid Funds, Inc. v. Pena (In re Pena), 155 F.3d 1108, 1112 (9th Cir.1998). Brunner established a three prong analysis to determine whether repayment of student loans creates an undue hardship: (1) the debtor cannot maintain, based on current income and expenses, a minimal standard of living if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good faith efforts to repay the loans. In re Brunner, 46 B.R. 752, 756 (S.D.N.Y.1985), aff'd 831 F.2d 395, 396 (2d Cir.1987). The debtor bears the burden of proof on all three elements. Pena, 155 F.3d at 1111; United Student Aid Funds, Inc. v. Nascimento (In re Nascimento), 241 B.R. 440, 445 (9th Cir. BAP 1999); Bryant v. Wells Fargo Bank (In re Bryant), 99.3 I.B.C.R. 118, 119 (Bankr.D.Idaho 1999). A. Minimal Standard of Living. A minimal standard of living requires more than a showing of tight finances. Weil v. U.S. Bank et al. (In re Weil), 00.2 I.B.C.R." }, { "docid": "15916684", "title": "", "text": "for determination by this court. ISSUES 1. Are the Debtors capable of paying the Student Loan Obligation while maintaining a minimal standard of living? 2. Are the Debtors’ financial circumstances likely to persist for a significant portion of the repayment period? 3. Has Mr. Cota made a good-faith effort to repay the Student Loan Obligation? 4. Should Mr. Cota be granted a partial discharge? JURISDICTIONAL STATEMENT The court has jurisdiction in this matter pursuant to 28 U.S.C. §§ 1334(a) and 157(a) and (b). In addition, this matter is ripe because, pursuant to Federal Rule of Bankruptcy Procedure 4007(b) and § 523(a)(8)(B), an action seeking discharge of a student loan can be brought at any time. In re Taylor, 223 B.R. 747, 751 (9th Cir. BAP 1998); see also In re Ekenasi 325 F.3d 541, 546 (4th Cir.2003). DISCUSSION I. Introduction In deciding whether excepting the Student Loan Obligation from Mr. Cota’s discharge will constitute an undue hardship, the court must apply the three-part Brun-ner test (Brunner Test). In re Brunner, 46 B.R. 752, 756 (S.D.N.Y.1985), aff'd, 831 F.2d 395, 396 (2nd Cir.1987), adopted by, In re Pena, 155 F.3d 1108, 1112 (9th Cir. 1998). Under the Brunner Test, Mr. Cota has the burden of proving by a preponderance of the evidence that: 1. The Debtors cannot, based on current income and expenses, maintain a minimal standard of living and repay the Student Loan Obligation; 2. Additional circumstances exist indicating that the state of affairs is likely to persist for a significant portion of the repayment period; and 3. The Debtor has made a good faith effort to repay the debt. Brunner, 46 B.R. at 756. II. Applying Brunner A. Minimal Standard of Living 1. Excess Income Analysis In order to determine if a debtor can maintain a minimal standard of living if required to pay a student loan debt, the court must review the income and expenses of the debtor at the time of trial. Pena, 155 F.3d at 1113. As set forth in the factual summary, the court has relied on the Debtors’ Pay Stubs and most recent tax" }, { "docid": "4149596", "title": "", "text": "five years, particularly her income, and the result of a determination of undue hardship under 11 U.S.C. § 523(a)(8) or unconscionability under 42 U.S.C. § 294f(g) may be different in five years than a dischargeability determination under the same sections today. The United States cites a number of cases in support of its argument that determination of the dischargeability of a Chapter 13 debtor’s educational loans is not ripe until successful completion of a plan. In Raisor v. Education Loan Servicing Center, Inc. (In re Raisor), 180 B.R. 163, 166-67 (Bankr.E.D.Tex.1995), the bankruptcy court concluded that because a Chapter 13 debtor is generally not entitled to a discharge until after completion of payments under a confirmed plan, “the issue of dischargeability is not ripe under Chapter 13 until either after the Chapter 13 plan has been successfully completed or the debtor has applied for a hardship discharge under § 1328(b).” The Raisor court relied on a Fifth Circuit decision stating the same, with respect to dischargeability in a Chapter 13 case under § 523(a)(2)(A), in the case of Rubarts v. First Gibraltar Bank (In re Rubarts), 896 F.2d 107, 109 (5th Cir.1990), also cited in the government’s brief. See also, Superior Court for the State of California, County of San Diego v. Heincy (In re Heincy), 858 F.2d 548, 550 (9th Cir.1988) (dischargeability of restitution debt not ripe for decision, if ever, until successful completion of plan payments), cited in Rubarts, 896 F.2d at 109; United Student Aid Funds, Inc. v. Taylor (In re Taylor), 228 B.R. 747, 750-51 (9th Cir. BAP 1998) (Chapter 13 debtor is generally not entitled to a discharge of debts until after completion of payments under a plan). In United States v. Lee, 89 B.R. 250, 257 (N.D.Ga.1987), aff'd United States v. Hochman (In re Hochman), 853 F.2d 1547 (11th Cir.1988), the bankruptcy court lield that whether a loan is dischargeable depends on whether “at the time discharge is sought” the requirements for discharge-ability have been met, and that therefore a determination of dischargeability prior to “successful completion of all payments under a Chapter 13" }, { "docid": "14643563", "title": "", "text": "the debtor showed “unique” or “extraordinary” circumstances making repayment of the loans unlikely even though the debtor’s income substantially exceeded federal poverty guidelines. Id. at 914. See also Reilly v. United Student Aid Funds, Inc. (In re Reilly), 118 B.R. 38 (Bankr.D.Md.1990) (discussion of objective Bryant test). Despite Bryant’s criticism of Johnson, some courts still consider the undue hardship test in Johnson and the three-part test articulated by the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir.1987) to be the two most commonly used standards for determining undue hardship discharges of student loans. See Phillips v. Great Lakes Higher Educ. Corp. (In re Phillips), 161 B.R. at 947 (“The two tests most widely applied by courts in determining whether an educational loan constitutes an ‘undue hardship’ are those articulated in Brunner v. New York State Higher Educ. Services Corp. and Pennsylvania Higher Educ. Assistance Agency v. Johnson (In re Johnson).”); see also In the Matter of Roberson, 999 F.2d 1132, 1135 (7th Cir.1993) (Court adopts Brunner test, declining to follow Johnson, as did the bankruptcy and district courts). 4. The Brunner Test As did Johnson, Brunner established a three-part test for determining discharge-ability of student loans. First, the Brunner court examined the debtor’s expenses and income to determine if repayment of the student loans would preclude the debtor from maintaining a minimal standard of living. Brunner, 831 F.2d at 396. Second, the court looked for additional, exceptional circumstances that suggest that the debtor’s current inability to repay his loans would continue “for a significant portion of the repayment period....” Id. Finally, the court inquired into the debtor’s good faith efforts to repay his student loans. Id. Finding neither exceptional circumstances suggesting a long-term inability to repay her student loans nor a good-faith effort to repay those loans, the Brunner court refused to discharge the debt- or’s student loans. Id. at 396-97. 5. Standard for “Hardship” Determination Of the four standards articulated above for undue hardship discharges of student loans — the Commission/Toukkala and Skidmore test, the three-part Johnson inquiry, the objective" }, { "docid": "11502928", "title": "", "text": "to prevent undue hardship on the Debtors and their dependents. However, it is premature for the Court to determine whether or not the PLUS Loans will cause undue hardship if the loans are not discharged. Under Chapter 13, the appropriate time for this determination is near or at the time the plan is scheduled for completion. Until then, the Debtors must treat USA Funds similar to the other unsecured creditors. The Debtors may file a new complaint pursuant to § 523(a)(8) if the facts so warrant when this matter is ripe. Therefore, the Court will enter an order granting the Motion to Dismiss. . Under certain conditions, a debtor may request # a “hardship discharge” even if the confirmed plan has not been successfully completed. See 11 U.S.C. § 1328(b). . Prior to 1990, student loans which were not dischargeable in a Chapter 7 case under § 523(a)(8) were dischargeable in a Chapter 13 case following the completion of payments under a confirmed plan. In 1990, Congress amended § 1328(a)(2) by inserting a cross-reference to § 523(a)(8) to make certain student loans nondis-chargeable. See 3 Keith M. Lundin, Chapter 13 Bankruptcy § 9.13 (2d ed. 1994). . The Court notes that some ,courts apply a slightly different test which examines whether: (1) it is reasonable, considering the debtor's current and future income and expenses, to require the debtor to repay some or all of the loan; (2) the debtor has made a good faith effort to repay the loan; and (3) allowing the discharge of the loan would thwart congressional intent of § 523(a)(8). See In re Bakkum, 139 B.R. 680, 683 (Bankr.N.D.Ohio 1992); Higher Educ. Assistance Agency v. Johnson, 5 Bankr.Ct.Dec. 532 (Bankr.E.D.Pa.1979). . Each of the cited cases concerned the discharge of a Health Education Assistance Loan (\"HEAL”) which are considered somewhat more difficult to discharge because of the requirements of 42 U.S.C. § 292f(g) (originally enacted as 42 U.S.C. § 294f(g) and recodified on October 13, 1992). See In re Barrows, 1994 WL 675220 (Bankr.D.N.H.1994). Section 292f(g) requires a debtor to establish that failure to discharge the" }, { "docid": "13204929", "title": "", "text": "at the end of a plan a debtor’s circumstances will have changed. The debtor will receive a discharge of most debts which may increase the debtor’s ability to pay at least a portion of the student loan. Finally, the court found that filing an undue hardship complaint at the beginning of a case demonstrates a lack of good faith under Brunner. As the court explained: A good faith effort under Chapter 13 requires, at a minimum, an effort by the Debtors to first repay at least some of the Plus loan under the Plan and then perform an examination of their financial condition near the completion of the Plan to determine whether they can either repay some or all of the outstanding balances of the Plus loans. The court also rejected the debt- or’s argument that it could bring the complaint at the beginning of the case pursuant to Bankruptcy Rule 4007(b) which provides that a § 523(a)(8) proceeding “may be filed at any time.” The fact that a complaint under § 523(a)(8) can be filed at anytime under Rule 4007(b) does not mean that such a complaint is actually ripe for adjudication. For example, a § 523(a)(8) complaint can be filed at any time in a Chapter 7 case because a Chapter 7 debtor receives a discharge much sooner than a Chapter 13 debtor. The Brunner factors can easily be determined in light of the Chapter 7 debtor’s current circumstances. Although a § 523(a)(8) complaint is ripe for adjudication and can be brought at any time in a Chapter 7 case pursuant to Rule 4007(b), the issue is not ripe for adjudication until the end of a Chapter 13 case when the debtor’s financial circumstances are clearer. The debtor cited the case of In re Goranson, 183 B.R. 52 (Bankr.W.D.N.Y.1995), as overruling Raisor and indicated that the case was from the same court as Rai-sor. It appears that counsel for the debtor inadvertently cited the Goranson case as an Eastern District of Texas case when in fact it was written by the Honorable Michael J. Kaplan, Chief Judge of" }, { "docid": "14896696", "title": "", "text": "or use to her in her employment. In a complaint to determine the dischargeability of debt, a debtor has the burden of proof to show evidence of undue hardship sufficient to discharge the student loan. Healey v. Massachusetts Higher Educ. (In re Healey), 161 B.R. 389, 393 (E.D.Mich.1993); Rose v. United Student Aids Funds MT (In re Rose), 6 Mont.B.R. 462, 464 (Bankr.Mont.1988); Connecticut Student Loan Found v. Keenan (In re Keenan), 53 B.R. 913 (Bankr.Conn.1985). Courts have identified several factors and tests to consider when determining whether “undue hardship” exists in a particular case. Prior to the adoption of the Bankruptcy Code, the bankruptcy court for the Eastern District of Pennsylvania propounded an oft-cited three-prong undue hardship test. Pennsylvania Higher Educ. Assistance Agency v. Johnson, 5 B.C.D. 532 (Bankr.E.D.Pa.1979). Since enactment of the Bankruptcy Code, the United States Court of Appeals for the Second Circuit adopted another test for. determining “undue hardship” in the educational loan context. Brunner v. New York State Higher Educ. Services Corp. (‘‘Brunner”), 831 F.2d 395, 396 (2nd Cir.1987). According to the Second Circuit, in order to gain discharge under 11 U.S.C. § 523(a)(8)(B), a debtor must show: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced, to repay the -loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. Id. The Ninth Circuit Court of Appeals adopted the Bnmner test as the appropriate test for determining what constitutes undue hardship under 11 U.S.C. § 523(a)(8)(B). United Student Aid Funds v. Pena (“Pena”), 155 F.3d 1108, 1114 (9th Cir.1998) (“We adopt the Brun-ner test as the test to be applied to determine the ‘undue hardship’ required to discharge student loans in bankruptcy' pursuant to 11 U.S.C. § 523(a)(8)(B)”). In Pena, the Court summarized the Brunner test as thus, - First, the debtor must establish “that she cannot" }, { "docid": "18506203", "title": "", "text": "always speculate on debtor’s financial situation years into the future. Educational Credit also argues that the determination whether “the debtor has made good faith efforts to repay the loans,” Saxman, 325 F.3d at 1173, cannot be made until at or near plan completion. However, whether it is premature for the court to make such a determination varies depending on each debtor’s situation. See, e.g., Ekenasi, 325 F.3d at 547. If the debtor has been trying in vain to make student loan payments for the past fifteen years, the facts may be sufficiently well developed for the court to conclude that the debtor made good faith efforts to repay. If, on the other hand, the debtor files for bankruptcy immediately upon graduating from college, it will likely be necessary to wait the duration of the plan before a good faith determination is possible. Here Coleman has been trying to repay her student loans since 1999, which seems to us a sufficient amount of time for the bankruptcy court to evaluate whether she has made a good faith attempt at repayment. We disagree with the Eighth Circuit’s conclusion that bankruptcy courts should not make an undue hardship determination until the time of discharge because “the factual question is whether there is undue hardship at the time of discharge, not whether there is undue hardship at the time that a § 523(a)(8) proceeding is commenced.” Bender, 368 F.3d at 848. The bankruptcy court below correctly noted that there is no clause in § 523(a)(8) specifying that the undue hardship must exist exactly at the time of discharge. Coleman, 333 B.R. at 849. The Fourth Circuit’s approach permits a debtor to choose the “snapshot date” for determining undue hardship on the grounds that the “text of the pertinent statute does not prohibit such an advance determination.” Ekenasi, 325 F.3d at 547. This approach is consistent with the statute and makes sense in light of Bankruptcy Rule 4007(b). While that rule could not, of course, render a constitutionally unripe matter ripe, it counsels in favor of a finding of prudential ripeness. C. Hardship Hardship to" }, { "docid": "109789", "title": "", "text": "exists in any given factual situation. However, with regards to all the tests developed by the courts, it is clear that the phrase “undue hardship” means, at the very least, more than the garden-variety financial hardship experienced by the vast majority of debtors who seek bankruptcy relief. Pichardo v. United Student Aid Funds, Inc. (In re Pichardo), 186 B.R. 279, 282 (Bankr. M.D.Fla.1995). In Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman), 25 F.3d 356 (6th Cir.1994), and Tennessee Student Assistance Corp. v. Hornsby (In re Hornsby), 144 F.3d 433 (6th Cir.1998), the Sixth Circuit Court of Appeals employed what has become to be known as the Brunner Test to determine if a student loan obligation is dischargeable on the basis of undue hardship under § 523(a)(8). In accordance therewith, this Court, as it has done in the past, will employ the Brunner Test in this case to determine the dischargeability of the Debtor’s student loan obligations. Before beginning with this analysis, however, it should be noted that it is the Debtor who bears the burden to prove, by a preponderance of the evidence, that all the elements of the Brunner Test are complied with. Brown v. Educ. Credit Management, 247 B.R. 228, 233 (Bankr.N.D.Ohio 2000) citing Vinci v. Pennsylvania Higher Education Assistance Agency (In re Vinci), 232 B.R. 644, 651 (Bankr.E.D.Pa.1999). Under the Brunner Test, which is named after the case of Brunner v. New York State Higher Educ. Serv. Corp., a debtor must establish that the following three elements are in existence in order to have a student loan discharged on the basis of “undue hardship”: (1) the debtor cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and (3) the debtor has made good faith efforts to repay the loans. 831 F.2d 395 (2nd Cir.1987). With regards to these requirements, the Defendant acknowledged at the Trial held on this" }, { "docid": "21225900", "title": "", "text": "aff'd 831 F.2d 395 (2nd Cir.1987), choosing instead to leave the interpretation of the phrase to the courts. See Kapinos v. Graduate Loan Ctr., 243 B.R. 271, 274 (W.D.Va.2000). The Fourth Circuit has adopted the three part test set out by the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2nd Cir.1987), for determining whether an “undue burden” exists within the meaning of § 523. See Ekenasi v. Education Resources Institute, 325 F.3d 541, 546 (4th Cir.2003) (Chapter 13); Educational Credit Management Corporation v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir.2005) (Chapter 7). The Brunner test requires the debtor to prove: (1) that [she] cannot maintain a minimal standard of living for [her]self and [her] dependent[ ], based upon [her] current income and expenses, if [she] is required to repay the student loans; (2) that additional circumstances indicate that [her] inability to so do is likely to exist for a significant portion of the repayment period of the student loans; and (3) that [she] has made good faith efforts to repay the loans. Frushour, 433 F.3d at 400 (citing Brunner, 831 F.2d at 396). The evidence shows that the debtor maintains a minimal standard of living based solely on the monthly Social Security disability income she receives. She asserts that she would not be able to make payments on her educational loans if she obtained employment. Regardless of whether her assertion is correct, the debt- or has failed to show additional circumstances establishing that any current inability to pay will continue. The second prong of the Brunner test, that additional circumstances exist indicating that debt- or’s present inability to repay the student loans is likely to persist for significant portion of loan repayment period, requires a “certainty of hopelessness,” rather than simply a present inability to pay. In re O’Hearn, 339 F.3d 559, 564 (7th Cir.2003). See In re Weir, 296 B.R. 710, 716 (Bankr.E.D.Va.2002) (Undue hardship is not based on a present inability to pay but rather upon a “certainty of hopelessness that future payments cannot be made”)" }, { "docid": "11502923", "title": "", "text": "time.” Thus, this matter is ripe for consideration. After reviewing the authorities cited by the parties and from the Court’s own research, the Court is of the opinion that this matter is not ripe for consideration. The Fifth Circuit in In re Rubarts, 896 F.2d 107, 109 (5th Cir.1990), stated in dictum that the issue of dischargeability is not ripe under Chapter 13 until either after the Chapter 13-plan has been successfully completed or the debtor has applied for a hardship discharge under § 1328(b). Because neither of these two events has occurred to date, the matter before the Court is premature. Additionally, the undue hardship discharge under § 523(a)(8) exception has been interpreted narrowly by the courts. Because neither the Bankruptcy Code nor the legislative history of the exception provides a clear definition of undue hardship, courts have generally applied a three part test to determine if a debtor’s circumstances warrant a hardship discharge of the student loan. To establish undue hardship, the Debtors’ are required to prove: (1) that the Debtors cannot maintain, based on current income and expenses, a “minimal” standard of living for themselves and their dependents; (2) that additional circumstances exist indicating that this state of affair is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the Debtors have made good faith efforts to repay the loans. In re Roberson, 999 F.2d 1132, 1135 (7th Cir.1993); Brunner v. New York State Higher Educ. Services Corp., 831 F.2d 395, 396 (2d Cir.1987); In re Stebbins-Hopf, 176 B.R. 784 (Bankr.W.D.Tex.1994). At this juncture, neither the parties nor the Court can fully address all of these factors. First, although the Debtors’ current income and expenses may prohibit them from repaying the PLUS Loans, it is speculative at this time what the Debtors’ income and expenses will be at the time the Plan is scheduled for completion. It is possible that the Debtors’ income may increase during the life of the Plan and negate the need for the discharge of the PLUS Loans. Secondly, because other unsecured debts will" }, { "docid": "21225899", "title": "", "text": "March 7, 2005. No other evidence of additional payments was introduced. CONCLUSIONS OF LAW Student loans are generally non-dis-chargeable. However, the exception to this rule allows student loans to be discharged when forcing repayment would impose an undue hardship on the debtor. 11 U.S.C. § 523(a)(8). Bankruptcy Code § 523 provides, in relevant part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— ❖ * ❖ 'A' (8) for an educational ... loan made, insured or guaranteed by a governmental unit ..., unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents.... 11 U.S.C. § 523 (emphasis added). Because Section 523(a)(8) creates a presumption of nondischargeability, the burden of establishing that student loans are dischargeable falls upon the debtor. United States v. Wood, 925 F.2d 1580, 1583 (7th Cir.1991). Congress did not define “undue hardship” in the Bankruptcy Code, see Brunner v. New York State Higher Educ. Servs. Corp., 46 B.R. 752, 753 (S.D.N.Y.1985), aff'd 831 F.2d 395 (2nd Cir.1987), choosing instead to leave the interpretation of the phrase to the courts. See Kapinos v. Graduate Loan Ctr., 243 B.R. 271, 274 (W.D.Va.2000). The Fourth Circuit has adopted the three part test set out by the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2nd Cir.1987), for determining whether an “undue burden” exists within the meaning of § 523. See Ekenasi v. Education Resources Institute, 325 F.3d 541, 546 (4th Cir.2003) (Chapter 13); Educational Credit Management Corporation v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir.2005) (Chapter 7). The Brunner test requires the debtor to prove: (1) that [she] cannot maintain a minimal standard of living for [her]self and [her] dependent[ ], based upon [her] current income and expenses, if [she] is required to repay the student loans; (2) that additional circumstances indicate that [her] inability to so do is likely to exist for a significant portion of the repayment period of the student loans; and (3) that [she]" } ]

[ { "docid": "22105370", "title": "", "text": "the distinction between the two propositions has become somewhat blurred. We have observed that “numerous differences tend to undercut substantial similarity,” id. at 913; see Herbert Rosenthal Jewelry Corp. v. Ho-nora Jewelry Co., 509 F.2d 64, 65 — 66 (2d Cir.1974). This observation appears to go beyond Professor Nimmer’s second proposition by emphasizing the significance of differences that do not necessarily change features of the plaintiff’s work, but may be entirely additional. To that extent, the observation modifies the first proposition. The tension between these two propositions perhaps results from their formulation in the context of literary works and their subsequent application to graphic and three-dimensional works. A story has a linear dimension: it begins, continues, and ends. If a defendant copies substantial portions of a plaintiff’s sequence of events, he does not escape infringement by adding original episodes somewhere along the line. A graphic or three-dimensional work is created to be perceived as an entirety. Significant dissimilarities between two works of this sort inevitably lessen the similarity that would otherwise exist between the total perceptions of the two works. The graphic rendering of a character has aspects of both the linear, literary mode and the multi-dimensional total perception. What the character thinks, feels, says, and does and the descriptions conveyed by the author through the comments of other characters in the work episodically fill out a viewer’s understanding of the character. At the same time, the visual perception of the character tends to create a dominant impression against which the similarity of a defendant’s character may be readily compared, and significant differences readily noted. Ultimately, care must be taken to draw the elusive distinction between a substantially similar character that infringes a copyrighted character despite slight differences in appearance, behavior, or traits, and a somewhat similar though non-infringing character whose appearance, behavior, or traits, and especially their combination, significantly differ from those of a copyrighted character, even though the second character is reminiscent of the first one. Stirring one’s memory of a copyrighted character is not the same as appearing to be substantially similar to that character, and only" } ]

[ { "docid": "12615102", "title": "", "text": "ends. If a defendant copies substantial portions of a plaintiffs sequence of events, he does not escape infringement by adding original episodes somewhere along the line.” “The misappropriation of even a small portion of a copyrighted work may constitute an infringement under certain circumstances.” “Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.” “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.” 361 F.3d at 320 (citations omitted). In a case such as this, it is appropriate to examine the theme, characters, plot, sequence, pace, and setting for similarities. Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996). “However, ‘random similarities scattered throughout the works’ may be discounted.” Murray Hill Publ’ns, Inc., 361 F.3d at 320 (quoting Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984)). In the end, the question is whether, based upon his “net impression” of the works’ expressive elements, the ordinary lay observer would find them substantially similar to one another. See, e.g., Ellis, 177 F.3d at 506 n. 2. Having reviewed “The Keeper” poem and screenplay and “Little Nicky,” we are unable to find any similarity between the works other than at perhaps the most superficial level. Casting aside the many stock themes, scenes a faire, and raw ideas cited by Strombaek, we are left ■with two works that are completely dissimilar in both their overall look and feel and in their constituent expressive elements. The respective themes, plots, moods, and settings of the works are dissimilar. “The Keeper” is a dark, disturbing, and humorless story about real people. Its theme is difficult to discern, but it appears to be that power and success in life can be attained through rhyming. The story takes place in California, and much of it occurs in the basement of the national paper where Ted works. While at the national paper Ted is attracted to a woman, Sue, who spurns him because he is “weird.” .Ted dislikes the corrupt Governor and at some point" }, { "docid": "20369040", "title": "", "text": "the dismissal of the copyright claim. While the question of substantial similarity is typically a question of fact, “in certain circumstances, it is entirely appropriate for a district court to resolve that question as a matter of law, either because the similarity between two works concerns only non-copyrightable elements of the plaintiffs work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir.2010). Thus “where ... the works in question are attached to a plaintiffs complaint, it is entirely appropriate for the district court to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation.” Id. at 64. In copyright infringement cases concerning jewelry designs, one of two tests have been used to determine whether an alleged copy is substantially similar so as to violate copyright law: (1) the “ordinary observer” test or (2) the “discerning observer” test. “The ordinary observer test asks ‘whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.’ ” Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F.Supp.2d 506, 516 (S.D.N.Y.2003), quoting Folio Impressions, Inc. v. Byer Cal, 937 F.2d 759, 765 (2d Cir.1991). If “an average lay observer would recognize [] the alleged copy as having been appropriated from the copyrighted work, then the two products are substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995). “The fact-finder must examine the works for their total concept and feel.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001). However, “[w]hen a work contains both protectable and unprotectable elements, the inspection must be more discerning” and the “discerning observer” test applies. Golden Treasure, 275 F.Supp.2d at 516. When applying this test, a court “must attempt to extract the unprotectable elements from [its] consideration and ask whether the" }, { "docid": "23492479", "title": "", "text": "establish a successful copyright infringement claim, a plaintiff must show that he or she owns the copyright and that defendant copied protected elements of the work. Shaw, 919 F.2d at 1356. Copying may be established by showing that the infringer had access to plaintiffs copyrighted work and that the works at issue are substantially similar in their protected elements. Id. For purposes of their summary judgment motion, Random House and CTW did not contest ownership or access. The sole issue before us is whether any of Random House’s or CTW’s works were substantially similar to the Cavaliers’ submissions. We employ a two-part analysis in this circuit—an extrinsic test and an intrinsic test—to determine whether two works are substantially similar. Id. The “extrinsic test” is an objective comparison of specific expressive elements., “[T]he test focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.” Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994) (quotation marks and citation omitted). Although originally cast as a “test for similarity of ideas,” Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977), the extrinsic test, now encompassing all objective manifestations of expression, no longer fits that description. Shaw, 919 F.2d at 1357. The “intrinsic test” is a subjective comparison that focuses on “whether the ordinary, reasonable audience” would find the works substantially similar in the “total concept and feel of the works.” Kouf, 16 F.3d at 1045 (quotation marks and citation omitted). A court “must take care to inquire only whether ‘the protectible elements, standing alone, are substantially similar.’ ” Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996) (emphasis in original) (citation omitted); accord Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir.1994). Therefore, when applying the extrinsic test, a court must filter out and disregard the non-protectible elements in making its substantial similarity deter mination. See Shaw, 919 F.2d at 1361 (applying the extrinsic test to determine “whether there is substantial similarity between the protected expression of ideas in two" }, { "docid": "15222318", "title": "", "text": "observer,” Yurman, 262 F.3d at 111 (citations omitted), or a “reasonable observer.” See Williams v. Crichton, 84 F.3d at 589-90. The trier is to ask whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Hamil America, Inc., v. GFI, 193 F.3d 92, 100 (2d Cir.1999) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (L. Hand, J.)). “If an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work, then the two products are substantially similar.” Yurman, 262 F.3d at 111 (quotation marks and citations omitted). This is an objective criterion. It invokes some supposedly general sensibility, rather than the perceptions of any particular audience. The district judge hearing the case or the appellate judge reviewing it is considered competent to play the role of an “ordinary” observer. See Boisson, 273 F.3d at 272 (“We review de novo the district court’s determination with respect to substantial similarity because credibility is not at stake and all that is required is a visual comparison of the products — a task we may perform as well as the district court.”). Presumably the judge will put aside any special sensibilities, aesthetic idiosyncrasies, or observational skills when clothed with the hoi polloi role. The essentially objective test applied in the Second Circuit can be contrasted with the more subjective approach in the Fourth Circuit, where substantial similarity is judged by whether works “express those ideas in a substantially similar manner from the perspective of the intended audience of, the work.” Lyons Partnership L.P. v. Morris Costumes, Inc. 243 F.3d 789, 801 (4th Cir.2001) (citation omitted and emphasis added). Slight reverberations in Second Circuit case law suggest that the perceptions of the specialized intended audience may be significant, see Repp, 132 F.3d at 889, quoting Arnstein v. Porter 154 F.2d 464, 473 (2d Cir.1946) (“defendant took from plaintiffs works so much of what is pleasing to the ears of lay-listeners, who comprise the audience for whom such" }, { "docid": "14051512", "title": "", "text": "is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001) (quotation marks omitted). However, “where [a court] compare[s] products that contain both protectible and unprotectible elements, [its] inspection must be more discerning,” Knitwaves, Inc., 71 F.3d at 1002 (quotation marks omitted), because “copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s.” Hamil Am. Inc., 193 F.3d at 99 (emphasis added). Therefore, where the allegedly infringed work consists of both protectible and unprotectible elements, the court “must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, Inc., 71 F.3d at 1002 (emphasis in original). That is, “[t]he court, confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.” Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134-35 (2d Cir.2003). Nevertheless, the nature of the creative process is such that even this discerning approach can prove clumsy. “ ‘[I]n Hollywood, as in the life of men generally, there is only rarely anything new under the sun.’” Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996) (quoting Berkic v. Crichton, 761 F.2d 1289, 1294 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985)). Since “all creative works draw on the common wellspring that is the public domain,” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 132, copyright protection does not extend only to new forms of expression but also, and more commonly, to assembling old forms in original ways. Cf. Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir.1987) (“Though a cliche or an ‘ordinary’ word-combination by" }, { "docid": "19822714", "title": "", "text": "F.2d at 121; see also Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996) (“[P]rotection covers the ‘pattern’ of the work ... the sequence of events and the development of the interplay of characters” (quoting Zechariah Chafee, Reflections on the Law of Copyright, 45 Colum. L.Rev. 503, 513 (1945))); Reyher, 533 F.2d at 91 (“While the demarcation between idea and expression may not be susceptible to overly helpful generalization, it has been emphasized repeatedly that the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events and characterization.” (citations omitted)). Thus, even though the “discerning” substantial similarity inquiry focuses on protectible elements in a work, courts “have disavowed any notion that hve are required to dissect [the works] into their separate components, and compare only those elements which are in themselves copyrightable.’ ” Peter F. Gaito, 602 F.3d at 66 (quoting Knitwaves, 71 F.3d at 1003). Rather, “we are principally guided by comparing the contested [work’s] total concept and overall feel with that of the allegedly infringed work, as instructed by our good eyes and common sense ... in the end, our inquiry necessarily focuses on whether the alleged infringer has misappropriated the original way in which the author has selected, coordinated, and arranged the elements of his or her work.” Id. (quotation marks and citations omitted). Courts “examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence,. pace, and setting” to test for substantial similarity. Williams, 84 F.3d at 588. “It is only where the points of dissimilarity exceed those that are similar and those similar are — when compared to the original work — of small import quantitatively or qualitatively that a finding of no infringement is appropriate.” Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992) (citing 3 Nimmer § 13.03(B)(1)(a)); see also Bill Diodato Photography, LLC v. Kate Spade, LLC, 388 F.Supp.2d 382, 390 (S.D.N.Y. 2005) (“Critical to the issue of improper appropriation is whether the copied elements of the work are original and nontrivial.”). That said, “[n]umerous differences" }, { "docid": "15222317", "title": "", "text": "is not merely to portray the appearance of the article or to convey information”, 17 U.S.C. § 101, are not themselves copyrightable. Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996, 1002 (2d Cir.1995) (clothing not copyrightable). Artistic aspects of utilitarian articles that are conceptually separable from the useful work may be copyrighted. See Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989, 996 (2d Cir.1980) (majority opinion; dissenting opinion found difficulty in disentangling' the artistic and utilitarian aspects of the article in question). Finally, elements which are not original are unprotectible. An important consequence of this rule is that elements copied from those in the public domain are not copyrightable. A defendant alleging that parts of plaintiffs work were copied from what was in the public domain bears the burden of proving that allegation. Boisson, 273 F.3d at 269. ii. Substantial Similarity The general test for determining whether two works are substantially similar for the purposes of infringement is that of the “ordinary observer.” This “ordinary observer” is sometimes referred to as an “average lay observer,” Yurman, 262 F.3d at 111 (citations omitted), or a “reasonable observer.” See Williams v. Crichton, 84 F.3d at 589-90. The trier is to ask whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Hamil America, Inc., v. GFI, 193 F.3d 92, 100 (2d Cir.1999) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (L. Hand, J.)). “If an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work, then the two products are substantially similar.” Yurman, 262 F.3d at 111 (quotation marks and citations omitted). This is an objective criterion. It invokes some supposedly general sensibility, rather than the perceptions of any particular audience. The district judge hearing the case or the appellate judge reviewing it is considered competent to play the role of an “ordinary” observer. See Boisson, 273 F.3d at 272 (“We review de novo the district court’s determination with respect to substantial" }, { "docid": "20699548", "title": "", "text": "not protect ideas, ' only their expression. Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996); 17 U.S.C. § 102(b). Themes fall into the category of uncopyrightable ideas. Walker v. Time Life Films, Inc., 784 F.2d 44, 48-49 (2d Cir.1986); see also Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.1980) (distinguishing between “themes, facts, and scenes a faire on the one hand, and copyrightable expression on the other”). For the same reason, copyright does not protect styles, but only particular original expressions of those styles. Judith Ripka Resigns, Ltd. v. Preville, 935 F.Supp. 237, 248 (S.D.N.Y.1996). 2. Substantial Similarity To show unlawful copying, a plaintiff must demonstrate “substantial similarity” between defendant’s work and protectable elements of his own. Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir.2001). The standard for substantial similarity is, in turn, “whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the. same.” Peter F. Gaito, 602 F.3d at 66 (brackets and internal quotation mprks omitted). This-is referred to as the “ordinary observer” test. The classic formulation in music cases is whether the “defendant took from plaintiffs work so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such, .,, music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.” Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997) (alteration in original) (quoting Amstein v. Porter, 154 F.2d 464, 473 (2d Cir.1946)). When a plaintiff alleges infringement of a copyrighted work that incorporates significant elements from the public dqmain, however, the “ordinary observer” test must . become “more discerning.” Boisson, 273 F.3d at 272. It would be unfair to impose copyright liability if the defendant copied something from the plaintiff that the latter had' no right to control. Applying this “more discerning observer” test, the Court must look for substantial similarity between the allegedly-infringing work and the original, protected elements of the plaintiffs creation. Id. If a defendant copies a specific original piece of a plaintiffs" }, { "docid": "18959150", "title": "", "text": "(2d Cir.1981)). Similarities between the two works are probative only if the similarities “would not be expected to arise if the works had been created independently.” O’Keefe v. Ogilvy & Mather Worldwide, Inc., 590 F.Supp.2d 500, 517 (S.D.N.Y. 2008) (quoting Velez v. Sony Discos, No. 05 Civ. 0615, 2007 WL 120686, at *6 (S.D.N.Y. Jan. 16, 2007)). In this case, the defendants deny that they copied the plaintiffs work but their motion for summary judgment is not based on the lack of copying. Therefore, the issues of copying, access, and probative similarity are not at issue on this motion. Rather, the defendants argue only that there is no substantial similarity between the defendants’ play and the protectible elements of the plaintiffs novel. A. The test for “substantial similarity” is the “ordinary observer test.” See Knitwaves, 71 F.3d at 1002; Fisher-Price, 25 F.3d at 123. The ordinary observer test asks “whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.” Folio Impressions, Inc. v. Byer Cal, 937 F.2d 759, 765 (2d Cir.1991) (internal quotations and citations omitted); see also Knitwaves, 71 F.3d at 1002; Yurman Design, Inc., 275 F.Supp.2d at 516. Under the ordinary observer test, the Court “considers the themes, characters, plots, settings, and total concept and feel of the two works.” Crane v. Poetic Prods. Ltd., 549 F.Supp.2d 566, 569 (S.D.N.Y.2008) (citing Flaherty v. Filardi 388 F.Supp.2d 274, 287 (S.D.N.Y. 2005)). “[Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for ‘no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.’ ” Williams, 84 F.3d at 588 (emphasis in original) (quoting Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992)). Nevertheless, differences between the two works are relevant to the question of substantial similarity because “numerous differences tend to undercut substantial similarity.” Warner Bros. v. American Broadcasting Companies, Inc., 720 F.2d 231, 241 (2d Cir.1983) (citation omitted); see also Mallery v. NBC Universal," }, { "docid": "508078", "title": "", "text": "F.3d 656, 663 (2d Cir.1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 376 (1994)). “That is, the plaintiff must show that the defendant appropriated the plaintiff’s particular means of expressing an idea, not merely that he expressed the same idea.” Fisher-Price, 25 F.3d at 123. 32. The test for “substantial similarity” is the “ordinary observer test.” See Knitwaves, 71 F.3d at 1002; Fisher-Price, 25 F.3d at 123. The ordinaiy observer test asks “whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.” Folio, 937 F.2d at 765 (internal quotations and citation omitted); see also Knitwaves, 71 F.3d at 1002. “[Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for ‘no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.’ ” Williams, 84 F.3d at 588 (quoting Rogers, 960 F.2d at 308). “It is only when the similarities between the protected elements of [the plaintiffs’ works] and the allegedly infringing work are of ‘small import quantitatively or qualitatively' that the defendant will be found innocent of infringement.” Williams, 84 F.3d at 588 (quoting Rogers, 960 F.2d at 308). 33. When a work contains both protectable and unprotectable elements, the inspection must be more discerning. See Knitwaves, 71 F.3d at 1002. The court “must attempt to extract the unprotectible elements from [its] consideration and ask whether the proteetible elements, standing alone, are substantially similar.” Knitwaves, 71 F.3d at 1002; see also Fisher-Price, 25 F.3d at 123. This more discerning test does not change the degree of similarity required, only what elements of the works are being compared. See Knitwaves, 71 F.3d at 1002-03; see also Fisher-Price, 25 F.3d at 123 (“Where as here, we compare products that have both proteetible and unprotectible elements, we must exclude comparison of the unprotectible elements from our application of the ordinary observer test”). 34. The defendants’ “Star” carpet is substantially similar to the protectable elements of the" }, { "docid": "2092242", "title": "", "text": "prima facie evidence of valid copyrights, and absent any reason or basis to rebut the presumption of validity, these two copyrights are valid, and the plaintiffs’ motion for summary judgment regarding these two copyrights is granted. Thus, the plaintiffs’ motion for summary judgment on the issue of copyright validity is granted. The defendants’ motion for summary judgment on the plaintiffs’ copyright claim, arguing that the plaintiffs’ designs are not protectable, is denied. B. The defendants have also moved for summary judgment on the grounds that the plaintiffs cannot satisfy the second element of a copyright claim. To prove the second element of a copyright claim, infringing copying, the plaintiffs must demonstrate both that the defendants have actually copied their works, and that such copying was illegal because a “substantial similarity” exists between the defendants jewelry designs and the protectable elements of the plaintiffs’ designs. See Knitwaves, 71 F.3d at 1002; Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir.1994); Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328, 1336 (S.D.N.Y.1997). The defendants have moved for summary judgment solely on the grounds that the plaintiffs, as a matter of law, cannot show substantial similarity. The test for “substantial similarity” is the “ordinary observer test.” See Knitwaves, 71 F.3d at 1002; Fisher-Price, 25 F.3d at 123. The ordinary observer test asks “whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.” Folio, 937 F.2d at 765 (internal quotations and citations omitted). See also Knitwaves, 71 F.3d at 1002. “[Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for ‘no copier may defend the act of pla-garism by pointing out how much of the copy he has not pirated.’ ” Williams, 84 F.3d at 588 (quoting Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992)) “It is only when the similarities between the protected elements of [the plaintiffs’ works] and the allegedly infringing work are of ‘small import quantitatively or qualitatively’ that" }, { "docid": "8869935", "title": "", "text": "should be made by Judge Dolinger, it is inappropriate for the Court to make any findings concerning of substantial similarity of the Stella and Gate B9 pieces stemming from any alleged spoliation. Rather, the Court will address whether the Stella and Gate B9 pieces are substantially similar based on the evidence in the record. “Because substantial similarity is customarily an extremely close question of fact, summary judgment has traditionally been frowned upon in copyright litigation.” Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.1980) (citations omitted). “However, summary judgment for non-infringement is appropriate ‘[i]f the similarity concerns only noncopyrightable elements of [a copyright holder’s] work, or no reasonable trier of fact could find the works substantially similar.’ ” Business Mgmt. Int’l, Inc. v. Labyrinth Bus. Sols., LLC, No. 05 Civ. 6738, 2009 WL 790048, at *16 (S.D.N.Y. March 24, 2009) (quoting Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 693, 705 (2d Cir.1998)). When copyright protection “is limited to the particular selection or arrangement” of common elements from the public domain, as is the case here, “the protection given [the holder] is thin”; a competing work will not be found to infringe “so long as the competing work does not feature the same selection and arrangement.” Tufenkian, 338 F.3d at 136 (quoting Feist, 499 U.S. at 349-51, 111 S.Ct. 1282); see also Castaneda, 591 F.Supp.2d at 485-86. In copyright infringement cases concerning jewelry designs, courts have applied one of two tests: (1) the “ordinary observer” test; or (2) the “discerning observer” test. “The ordinary observer test asks ‘whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.’ ” Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F.Supp.2d 506, 516 (S.D.N.Y.2003) (quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765 (2d Cir.1991)) (alterations in original). “If an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work, then the two products are substantially similar. The fact-finder" }, { "docid": "11569248", "title": "", "text": "alleges that Palmer’s text appropriates numerous words and phrases from the copyrighted materials. Secondly, Arica asserts that Palmer unlawfully reproduces the seven core Ichazo enneagrams representing the ego fixations. Arica makes this second claim in three, separate ways: (1) Palmer appropriates the precise words with which Ichazo has labeled his figures; (2) Palmer appropriates the sequence in which Icha-zo’s labels appear; (3) Palmer appropriates Ichazo’s decision to attach the ego fixation labels to the enneagram figure. To succeed in its infringement claim, Ari-ca must demonstrate two elements: “(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Serv., Inc., — U.S. —, —, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); 3 Melville B. Nim-mer & David Nimmer, Nimmer on Copyright § 13.01 at 13-4 to 13-5 (1991) [hereinafter Nimmer, Nimmer on Copyright]. The parties dispute only the second of these two elements. See Arica, 770 F.Supp. at 190. Since direct evidence of copying is rare, a court may infer it upon a showing that defendant had access to the copyrighted work, and that the allegedly infringing material bears a substantial similarity to copyrightable elements of plaintiff’s work. Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765 (2d Cir.1991); Warner Bros., Inc. v. Am. Broadcasting Cos., 654 F.2d 204, 207 (2d Cir.1981); 3 Nimmer, Nimmer on Copyright § 13.01[B] at 13-8 n. 26.3. Two works are substantially similar where “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal [of the two works] as the same,” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). Accordingly, summary judgment may be appropriate “either because the similarity between the two works concerns only ‘wow-copyrightable elements of the plaintiff’s work,’ or because no reasonable jury, properly instructed, could find that the two works are substantially similar.” Warner Bros. Inc. v. Am. Broadcasting Cos., 720 F.2d 231, 240 (2d Cir. 1983) (citations omitted); Hoehling v. Universal City Studios, Inc., 618 F.2d 972," }, { "docid": "12615101", "title": "", "text": "into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.”); Whitehead v. Paramount Pictures Corp., 53 F.Supp.2d 38, 49 (D.D.C.1999) (“The general concept of an interracial relationship ... is not copyrightable”) (citing Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir.1998)). These elements are too general to qualify for copyright protection. 2. Comparing the Works After filtering out the unprotectible elements such as ideas and scenes a faire, the final step is to determine whether the allegedly infringing work is “substantially similar” by comparing the two works. Wickham, 739 F.2d at 1097. Substantial similarity exists where “the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protectible expression by taking material of substance and value.” Country Kids ‘N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1288 (10th Cir.1996) (internal quotation marks and citation omitted). In Murray Hill we wrote: “A story has a linear dimension: it begins, continues, and ends. If a defendant copies substantial portions of a plaintiffs sequence of events, he does not escape infringement by adding original episodes somewhere along the line.” “The misappropriation of even a small portion of a copyrighted work may constitute an infringement under certain circumstances.” “Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.” “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.” 361 F.3d at 320 (citations omitted). In a case such as this, it is appropriate to examine the theme, characters, plot, sequence, pace, and setting for similarities. Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996). “However, ‘random similarities scattered throughout the works’ may be discounted.” Murray Hill Publ’ns, Inc., 361 F.3d at 320 (quoting Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984)). In the end, the question is whether, based upon his “net impression” of the works’ expressive elements, the ordinary lay observer would find them" }, { "docid": "17509352", "title": "", "text": "that actual copying occurred, the “plaintiff must then show that the copying amounts to an improper appropriation by demonstrating that substantial similarity [of] protected material exists between the two works.” Laureyssens, 964 F.2d at 140. The plaintiff must show that the defendant copied sufficient protected expression that audiences will perceive substantial similarities between the defendant’s work and plaintiffs protected expression. Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir.1986). If “the similarities between the protected elements of plaintiffs work and the allegedly infringing work are of small import quantitatively or qualitatively.. .the defendant will be found innocent of infringement.” Williams v. Crichton, 84 F.3d at 588 (internal quotations and citations omitted). “Two works are substantially similar where the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them and regard the aesthetic appeal of the two works as the same.” Arica Institute, Inc. v. Palmer, 970 F.2d 1067 (2d Cir.1992)(quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960)). Not all elements of a copyrighted work will be protected. For example, scenes a faire, elements of a work that necessarily result from its subject matter or ideas, do not enjoy copyright protection. Williams v. Crichton, 84 F.3d at 587(citing Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986)). If a work contains both protecti-ble and unprotectible elements, infringement is to be judged solely on the basis of the similarity of the proteetible elements. Crichton, 84 F.3d at 588. “[Sjummary judgment may be appropriate either because the similarity between the two works concerns only non-copyrightable elements of the plaintiffs work, or because no reasonable jury, properly instructed; could find that the two works are substantially similar.” Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992). The defendants are entitled to the dismissal of plaintiffs claims with respect to Guide II. DeBitetto alleges only one instance of copying in Guide II, a drawing of a dog’s paw and nail. \"While the drawing in Guide II is undeniably similar, if not identical, to one contained" }, { "docid": "508077", "title": "", "text": "were independently created. For each carpet, the defendants were unable to describe credibly their design process. In regard to their “Star” and “Swirl” carpets, the defendants were also unable to explain how, without actually copying the plaintiffs’ carpets, early proto-types were transformed into final products that much more closely resembled the plaintiffs’ carpets. SUBSTANTIAL SIMILARITY 30. For each of the allegedly infringed upon carpet designs, the plaintiffs have demonstrated that the defendants engaged in actual copying. However, to succeed on their claims of copyright infringement, they must also show that the copying was illegal because “[p]arrotry does not always mean piracy.” Fisher-Price, 25 F.3d at 123. Copying is illegal only when there is a “substantial similarity between the defendants’ work and the proteetible elements of [the plaintiffs’ works].” Knitwaves, 71 F.3d at 1002 (quoting Fisher-Price, 25 F.3d at 122-23). 31. In determining the protectable elements of the plaintiffs’ works, “ ‘a copyright does not protect an idea, but only the expression of an idea’” Williams, 84 F.3d at 587 (citing Kregos v. Associated Press, 3 F.3d 656, 663 (2d Cir.1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 376 (1994)). “That is, the plaintiff must show that the defendant appropriated the plaintiff’s particular means of expressing an idea, not merely that he expressed the same idea.” Fisher-Price, 25 F.3d at 123. 32. The test for “substantial similarity” is the “ordinary observer test.” See Knitwaves, 71 F.3d at 1002; Fisher-Price, 25 F.3d at 123. The ordinaiy observer test asks “whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.” Folio, 937 F.2d at 765 (internal quotations and citation omitted); see also Knitwaves, 71 F.3d at 1002. “[Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for ‘no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.’ ” Williams, 84 F.3d at 588 (quoting Rogers, 960 F.2d at 308). “It is only when the" }, { "docid": "15222319", "title": "", "text": "similarity because credibility is not at stake and all that is required is a visual comparison of the products — a task we may perform as well as the district court.”). Presumably the judge will put aside any special sensibilities, aesthetic idiosyncrasies, or observational skills when clothed with the hoi polloi role. The essentially objective test applied in the Second Circuit can be contrasted with the more subjective approach in the Fourth Circuit, where substantial similarity is judged by whether works “express those ideas in a substantially similar manner from the perspective of the intended audience of, the work.” Lyons Partnership L.P. v. Morris Costumes, Inc. 243 F.3d 789, 801 (4th Cir.2001) (citation omitted and emphasis added). Slight reverberations in Second Circuit case law suggest that the perceptions of the specialized intended audience may be significant, see Repp, 132 F.3d at 889, quoting Arnstein v. Porter 154 F.2d 464, 473 (2d Cir.1946) (“defendant took from plaintiffs works so much of what is pleasing to the ears of lay-listeners, who comprise the audience for whom such ... music is composed ”) (emphasis added), but this subjective paradigm has not taken root in the Second Circuit. See, e.g., Williams v. Crichton, 84 F.3d 581, 589, 590 (examining similarity between children’s books as it would appear to the reasonable lay observer, and noting that “copyright law is to be uniformly applied across a variety of media and audiences”). While no mention of the child’s perspective in determining similarity between dolls is found in the cases, some juvenilization of a judge’s appreciation of what is important in dolls is tolerable. Where a work consists of protectible and unprotectible elements, a somewhat refined version of the “ordinary observer” test has sometimes been applied. In Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir.1991), the court was troubled that “the ordinary observer would compare the finished product that the fabric designs were intended to grace (women’s dresses), and would be inclined to view the entire dress — consisting of pro-tectible and unprotectible elements—as one whole.” Folio Impressions, 937 F.2d at 765. To avoid finding" }, { "docid": "18959151", "title": "", "text": "appeal as the same.” Folio Impressions, Inc. v. Byer Cal, 937 F.2d 759, 765 (2d Cir.1991) (internal quotations and citations omitted); see also Knitwaves, 71 F.3d at 1002; Yurman Design, Inc., 275 F.Supp.2d at 516. Under the ordinary observer test, the Court “considers the themes, characters, plots, settings, and total concept and feel of the two works.” Crane v. Poetic Prods. Ltd., 549 F.Supp.2d 566, 569 (S.D.N.Y.2008) (citing Flaherty v. Filardi 388 F.Supp.2d 274, 287 (S.D.N.Y. 2005)). “[Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for ‘no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.’ ” Williams, 84 F.3d at 588 (emphasis in original) (quoting Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992)). Nevertheless, differences between the two works are relevant to the question of substantial similarity because “numerous differences tend to undercut substantial similarity.” Warner Bros. v. American Broadcasting Companies, Inc., 720 F.2d 231, 241 (2d Cir.1983) (citation omitted); see also Mallery v. NBC Universal, Inc., No. 07 Civ. 2250, 2007 WL 4258196, at *8 (S.D.N.Y. Dec. 3, 2007) (“scattershot” listing of “several highly generalized similarities” between television series Heroes and plaintiffs’ novel does not address the issue of “whether a lay observer would consider the works as a whole substantially similar”). “It is only when the similarities between the protected elements of [the plaintiffs work] and the allegedly infringing work are of ‘small import quantitatively or qualitatively’ that the defendants] will be found innocent of infringement.” Williams, 84 F.3d at 588, 590 (holding that novel Jurassic Park and children’s book about dinosaur zoo are not substantially similar) (quoting Rogers, 960 F.2d at 308). When a work contains both protectible and unprotectible elements, the inspection must be more discerning. See Knitwaves, 71 F.3d at 1002. The court “must attempt to extract the unprotectable elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Id. (em phasis in original); see also Fisher-Price, 25 F.3d at 123. This more discerning test does not change the degree of" }, { "docid": "20699547", "title": "", "text": "unprotectable). For the same reason, common rhythms, song structures, and harmonic progressions are not protected. Intersong-USA v. CBS, Inc., 757 F.Supp. 274, 282 (S.D.N.Y.1991); Velez v. Sony Discos, No. 05-CV-615, 2007 WL 120686, at *12 (S.D.N.Y. Jan. 16, 2007). Importantly, copyright can protect an author’s original contribution to “a compilation of unprotectable elements”— specifically, “the original way in which the author has selected, coordinated,' and arranged the elements of his or her work.” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1004 (2d Cir.1995) (internal quotation marks omitted). Thus, uncopyrightable notes can be assembled into a copyrightable melody. Even a commonplace, public domain melody could become part of a copyrightable musical composition when combined in an original, way with other elements of songwriting like harmony, rhythm, and structure. Turning to lyrics, though an “‘ordinary’ [i.e., uncopyrightable] phrase may be quoted without fear of infringement, a copier may not quote or paraphrase the sequence of creative expression that includes such a phrase.” Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir.1987). Second, copyright does not protect ideas, ' only their expression. Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996); 17 U.S.C. § 102(b). Themes fall into the category of uncopyrightable ideas. Walker v. Time Life Films, Inc., 784 F.2d 44, 48-49 (2d Cir.1986); see also Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.1980) (distinguishing between “themes, facts, and scenes a faire on the one hand, and copyrightable expression on the other”). For the same reason, copyright does not protect styles, but only particular original expressions of those styles. Judith Ripka Resigns, Ltd. v. Preville, 935 F.Supp. 237, 248 (S.D.N.Y.1996). 2. Substantial Similarity To show unlawful copying, a plaintiff must demonstrate “substantial similarity” between defendant’s work and protectable elements of his own. Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir.2001). The standard for substantial similarity is, in turn, “whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the. same.” Peter F. Gaito, 602 F.3d at 66 (brackets and" }, { "docid": "2092243", "title": "", "text": "The defendants have moved for summary judgment solely on the grounds that the plaintiffs, as a matter of law, cannot show substantial similarity. The test for “substantial similarity” is the “ordinary observer test.” See Knitwaves, 71 F.3d at 1002; Fisher-Price, 25 F.3d at 123. The ordinary observer test asks “whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.” Folio, 937 F.2d at 765 (internal quotations and citations omitted). See also Knitwaves, 71 F.3d at 1002. “[Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for ‘no copier may defend the act of pla-garism by pointing out how much of the copy he has not pirated.’ ” Williams, 84 F.3d at 588 (quoting Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992)) “It is only when the similarities between the protected elements of [the plaintiffs’ works] and the allegedly infringing work are of ‘small import quantitatively or qualitatively’ that the defendant will be found innocent of infringement.” Williams, 84 F.3d at 588 (quoting Rogers, 960 F.2d at 308). When a work contains both protectable and unprotectable elements, the inspection must be more discerning. See Knitwaves, 71 F.3d at 1002. The court “must attempt to extract the unprotectable elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, 71 F.3d at 1002. See also Fisher-Price, 25 F.3d at 123. This more discerning test does not change the degree of similarity required, only what elements of the works are being compared. See Knitwaves, 71 F.3d at 1002-03; see also Fisher-Price, 25 F.3d at 123 (“Where as here, we compare products that have both protectible and unprotecti- ble elements, we must exclude comparison of the unprotectible elements form our application of the ordinary observer test”); Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 765-66 (2d Cir.1991) (“[S]inee only some of the design enjoys copyright protection, the observers’s inspection must be more discerning.”); Odegard, 963 F.Supp. at 1338. The defendants, relying" } ]

[ { "docid": "22662178", "title": "", "text": "court accordingly denied the motion to add Housing Council as a party-plaintiff, denied Home Builders’ motion to intervene, and dismissed the complaint. The Court of Appeals affirmed, reaching only the standing questions. II We address first the principles of standing relevant to the claims asserted by the several categories of petitioners in this case. In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. E. g., Barrows v. Jackson, 346 U. S. 249, 255-256 (1953). In both dimensions it is founded in concern about the proper — and properly limited — role of the courts in a democratic society. See Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 221-227 (1974); United States v. Richardson, 418 U. S. 166, 188-197 (1974) (Powell, J., concurring). In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a “case or controversy” between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has “alleged such a- personal stake in the outcome of the controversy” as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf. Baker v. Carr, 369 U. S. 186, 204 (1962). The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action . . . .” Linda R. S. v. Richard, D., 410 U. S. 614, 617 (1973). See Data Processing Service v. Camp, 397 U. S. 150, 151-154 (1970). Apart from this minimum constitutional mandate, this Court has recognized other" } ]

[ { "docid": "23492907", "title": "", "text": "of Educ. v. State Bd. of Educ., 490 F.2d 1285, 1297-98 (6th Cir.) (Weick, J., dissenting), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974). Thus, the City may not challenge CTRPA’s plans and ordinances on constitutional grounds. Because all of its claims are based on the Constitution, the City’s challenge was properly dismissed. B. The Councilmembers’ Standing The essence of the standing question “is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. ... In both dimensions it is founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, supra, 422 U.S. at 498, 95 S.Ct. at 2205 (citation omitted). As a constitutional minimum, standing requires that a plaintiff allege “such a personal stake in the outcome of a controversy” as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action . . ..” Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). See Data Processing Service v. Camp, 397 U.S. 150, 151-154, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). Id. at 498-99, 95 S.Ct. at 2205 (footnotes omitted) (emphasis in original). This constitutional minimum is sometimes described as the requirement that a plaintiff must allege “injury in fact.” Schiesinger v. Reservists to Stop the War, 418 U.S. 208, 218, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152," }, { "docid": "1343446", "title": "", "text": "deceptive and that, under the Bates decision, it may be properly regulated by the state. Standing The threshold question in this matter is one of standing to sue. It is the position of the defendants that the plaintiff has not been prosecuted or threatened with prosecution and that, therefore, there is no case or controversy within Article III of the Federal Constitution. In analyzing the question of standing, the court is faced with both the question of constitutional limitations on the jurisdiction of the federal courts as well as prudential limitations on the exercise of that jurisdiction in the sound discretion of the court. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed.2d 1586 (1953). In the former dimension, the question is one of justiciability, i. e., whether the plaintiff has “alleged such a personal stake in the outcome of the controversy” as to warrant the invocation of federal jurisdiction and the remedial powers thereof. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Federal jurisdiction, then, will lie only where the plaintiff has suffered some “threatened or actual injury resulting from the putatively illegal action . .” Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The personal stake in the outcome is “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663, 678 (1962). See generally, Warth v. Seldin, 422 U.S. 490, 498-502, 95 S.Ct. 2197, 45 L.Ed.2d 343, 354-56 (1975). It is true that, in this case, the plaintiff has not been prosecuted (as were the plaintiffs in Bates) nor has he been directly threatened with prosecution. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Supreme Court found that Georgia-licensed physicians had standing to challenge the constitutionality of the abortion laws of that state. Id. at" }, { "docid": "6936425", "title": "", "text": "bring a false claims action “for the person and for the United States Government.” The qui tam plaintiff sues in the name of the government. The defendants argue this congressional grant of standing exceeds the constitutionally imposed limits on justi-ciable controversies because the relator cannot demonstrate an injury-in-fact. A. Article III Requirements: Under Article III, the jurisdiction of the federal courts is limited to “cases” and “controversies.” The various doctrines of justiciability that limit the federal courts’ power to adjudicate disputes — such as ripeness, mootness, and standing — arise from a concern about the separation of powers in the constitutional scheme. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Specifically, Article III doctrines “state fundamental limits on federal judicial power in our system of government.” Id. Standing is perhaps the most important of the doctrines of justiciability. To have standing, a plaintiff must show actual or threatened injury that is likely to be redressed if the requested relief is granted. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). This injury must be concrete and distinct, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 2931, 41 L.Ed. 2d 706 (1974), to ensure that the litigant has a personal stake in the outcome of the litigation, Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). The purpose of this requirement is to ensure “that concrete adverseness which sharpens the presentation of issues.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). However, as the Supreme Court has noted, vigorous litigation “is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 486, 102 S.Ct. 752, 766, 70 L.Ed.2d 700 (1982). Congress may create a legal interest and confer standing to assert that" }, { "docid": "22793137", "title": "", "text": "sufficient that a complaint assert a “generalized grievance.” See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216-27, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706, 715 (1974). See also Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947, 965 (1968). A Plaintiff must allege “such a personal stake in the outcome of the controversy” as to warrant his invocation of the federal court’s jurisdiction. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). See also Warth v. Seldin, supra, 422 U.S. at 496, 95 S.Ct. at 2204, 45 L.Ed.2d at 353, 43 U.S.L.W. at 4908. The accepted test for standing is one of “injury in fact”, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970), and a court’s jurisdiction may be invoked only where the complaint alleges that the Plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action . . . .” Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536, 540 (1973). However, once an individual has alleged a distinct and palpable injury to himself he has standing to challenge a practice even if the injury is of a sort shared by a large class of possible litigants. See United States v. SCRAP, supra 683-90, 93 S.Ct. 2413, 37 L.Ed.2d 267. This Court has taken a broad view of standing in Title VII actions. Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125, 130 (6th Cir. 1971). See also Roberts v. Union Co., 487 F.2d 387, 389 (6th Cir. 1973). Cf. Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969). Standing for purposes of the Civil Rights Act of 1964 was intended by Congress to be defined as broadly as permitted by Article III of the Constitution. See Rosen v. Public Service Electric and Gas Co., 477 F.2d 90, 94 (3d Cir. 1973); Huff v. N. D. Cass Co., 485 F.2d 710" }, { "docid": "22368611", "title": "", "text": "issues be justiciable; /. e., they must “present a real and substantial controversy which unequivocally calls for the adjudication of .. . rights.” Poe v. Ullman, 367 U.S. 497, 509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961) (Brennan, J. concurring). A second case or controversy requirement is that the plaintiffs have standing to assert their claims. In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343, the Supreme Court noted that the question of standing is in essence “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.... In both dimensions it is founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Id. at 498, 95 S.Ct. at 2205 (citations omitted). Standing requires as a constitutional minimum that a plaintiff allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The standing question focuses upon the party asserting the claim because “[t]he Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action ....’ Linda R. S. v. Richard D., 410 U.S. 614, 617, [93 S.Ct. 1146, 1148, 35 L.Ed.2d 536] (1973).” Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205. This constitutional dimension of the standing requirement is sometimes described as a requirement that the plaintiff allege “injury in fact.” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 218, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974); Ass’n of Data Processing Service Organizations," }, { "docid": "22793136", "title": "", "text": "his continued protests against discrimination at Inland is supported by substantial evidence. Since the findings were not clearly erroneous this portion of the District Court opinion is affirmed. See Miller v. United States, 522 F.2d 386, 387 (6th Cir. 1975) (per curiam). We now turn to an examination of the issues sought to be raised by Appellant on behalf of the class. STANDING Initially, General Motors challenges Mr. Senter’s standing to maintain this suit as a class action. Standing is a “threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354, 43 U.S.L.W. 4906, 4908 (1975). “In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III.” Id. Generally, standing is not granted to vindicate the rights of third parties. See Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). Nor is it sufficient that a complaint assert a “generalized grievance.” See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216-27, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706, 715 (1974). See also Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947, 965 (1968). A Plaintiff must allege “such a personal stake in the outcome of the controversy” as to warrant his invocation of the federal court’s jurisdiction. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). See also Warth v. Seldin, supra, 422 U.S. at 496, 95 S.Ct. at 2204, 45 L.Ed.2d at 353, 43 U.S.L.W. at 4908. The accepted test for standing is one of “injury in fact”, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970), and a court’s jurisdiction may be invoked only where the complaint alleges that the Plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action . . ." }, { "docid": "18621831", "title": "", "text": "us the fears of persecution, particularly in Hispanic communities which it says would be exacerbated by the relief sought by the plaintiffs. II. Standing as a Jurisdictional Principle As a court of limited jurisdiction, our threshold inquiry must be to ensure that we are presented with a justiciable case, a “case or controversy” within the meaning of Article III. Part of the inquiry into whether a “case or controversy” exists must focus on whether any of the plaintiffs here have standing to present the issue discussed above. Standing is a complex issue, embodying both constitutional and prudential limitations on the exercise of the power of a federal court, but the initial question is whether the plaintiffs have established the indispensable constitutional minimum which must be present in every case, a concrete injury suffered personally by the party seeking relief. While the plaintiff need only allege “an identifiable trifle” of injury to overcome the constitutional barrier to invocation of the power of the courts, United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Supreme Court has emphatically held that there is no such thing as “citizen standing” or “issue standing.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) . Concern with or interest in an issue is simply not enough to entitle a litigant to demand resolution of a legal issue. On the other hand, the mere fact that the injury is a small one, suffered generally by a large number of people, poses no absolute constitutional barrier to standing, so long as the plaintiff is able to establish that he or she personally has suffered the claimed injury. There is no doubt that individuals claiming that their votes are diluted because their Representative represents a greater number of constituents than do other Representatives in the same assembly have standing to challenge the apportionment scheme. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In such a case, the question is “whether the claims of malapportionment ... are in fact made" }, { "docid": "6342429", "title": "", "text": "in this case, is too speculative and remote to supply Moore with a sufficient interest to challenge the fee waiver. To establish proper standing, Moore must show an injury-in-fact caused by the alleged misconduct of the defendant which is redressable by this court. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 498-502, 505, 95 S.Ct. 2197, 2204-2207, 2208, 45 L.Ed.2d 343 (1975). As the Supreme Court has put it, “the standing question is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant [her] invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on [her] behalf.” 422 U.S. at 498-99, 95 S.Ct. at 2204-05 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). The plaintiff must show “some threatened or actual injury resulting from the putatively illegal action____” Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). We need not decide whether Moore or her counsel is the proper party to sue for fees owing yet uncollected. NASD overlooks the fact that Moore has already paid over $3,100.00 in fees and expenses to prior counsel in this case. Appellant’s Reply Brief at 1-2; (J.A. 191-92). Had fees not been waived, this amount might have been collected from NASD to reimburse Moore. This economic injury unquestionably constitutes a sufficient injury-in-fact; and, Moore’s attribution of the waiver to the defendant’s “demand” establishes the causal nexus. Further, redressability through our authority to pass on class action settlements is well-established. We conclude, therefore, that Moore has standing to challenge the waiver of the fee-recovery provision. Accordingly, we need not reach NASD’s secondary contention that Moore’s claim of impaired representation constitutes no more than a speculative and remote general grievance. B. Waiver of Attorneys’Fees Moore asserts that all the problems raised here stem from NASD’s “demand” for simultaneous discussion of settlements on the merits and on attorneys’ fees. Appellant’s Brief at" }, { "docid": "2600441", "title": "", "text": "must consider is whether the plaintiffs have standing to maintain this suit. Because Article III of the Constitution limits the “judicial power” of the United States to the resolution of “cases and controversies,” the authority of federal courts “cannot be defined, and indeed has no substance, without reference to the necessity to adjudge the legal rights of litigants in actual controversies.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1981) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)). See also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1983). To have standing, the plaintiff must have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In order to establish a “personal stake” in the case, a plaintiff must show that he has suffered “some threatened or actual injury resulting from the putatively illegal action....” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973)). See also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965, 1968-69, 32 L.Ed.2d 627 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). That injury must be fairly traceable to the challenged action of the defendant, and it must be likely to be redressed by a favorable decision. Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. The requirement that the plaintiff allege an “injury-in-fact,” whether economic or non-economic, excludes simple indignation as a basis for Article III standing. That the plaintiffs may be offended by the defen dants’ conduct is not enough to" }, { "docid": "9870410", "title": "", "text": "thereby deprived them of the equal protection of the laws guaranteed by the fourteenth amendment. II Standing is a threshold question in every case before a federal court. Warth v. Seldin, 422 U.S. 490, 517-18, 95 S.Ct. 2197, 2214-2215, 45 L.Ed.2d 343 (1975); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 233 (9th Cir.), cert. denied, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502 (1980). Before the judicial process may be invoked, a plaintiff must “show that the facts alleged present the court with a ‘case or controversy’ in the constitutional sense and that [he] is a proper plaintiff to raise the issues sought to be litigated.” Linda R.S. v. Richard D., 410 U.S. 614, 616, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). A party seeking to invoke the court’s authority must demonstrate “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of the issues upon which the court so largely depends .... ” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The question of whether the plaintiff has standing involves both constitutional and prudential limitations. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Warth v. Seldin, supra, 422 U.S. at 498, 95 S.Ct. at 2204. The constitutional limitations of article III involve three separate but interrelated components: first, a “distinct and palpable” injury to the plaintiff, id. at 501,95 S.Ct. at 2206, be it “threatened or actual,” Linda R.S. v. Richard D., supra, 410 U.S. at 617, 93 S.Ct. at 1148; second, a “fairly traceable causal connection” between that injury and the challenged conduct of the defendant, Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (Duke Power); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976) (Simon); and third, a “substantial likelihood” that the relief requested will redress or prevent the injury. Duke" }, { "docid": "6552985", "title": "", "text": "controversy” between litigants before the power of the federal judiciary may be invoked to resolve a dispute. Id. at 151, 90 S.Ct. at 829. Concisely stated, a plaintiff who “has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction, and to justify exercise of the court’s remedial powers on his behalf,” Warth, 422 U.S. at 498, 95 S.Ct. at 2205, quoting Baker v. Carr, 369 U.S. 186, 201, 82 S.Ct. 691, 701, 7 L.Ed.2d 663 (1962) (emphasis in original), has alleged an injury satisfying the constitutional dimension of the standing doctrine. Allegations in the complaint of (1) a bona fide injury which, however small, negates all implication that the plaintiff filed the lawsuit from intellectual or academic curiosity, United States v. SCRAP, 412 U.S. 669, 687-88, 93 S.Ct. 2405, 2415-16, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972), and (2) a “fairly traceable” causal connection between the plaintiff’s alleged injuries and the defendant’s illegal conduct, Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), establish that the plaintiff has suffered injury at-the hands of the defendant and confirm that he holds the requisite personal stake to prosecute the lawsuit. Otherwise judicial intervention could be a fruitless, gratuitous endeavor. In addition to alleging an actual case or controversy, plaintiffs must have interests arguably falling within the zone of interests Congress meant to protect by passing the statute. SCRAP, 412 U.S. at 686, 93 S.Ct. at 2415. The zone of interests limitation is one of several non-constitutional, judicially-imposed, prudential restrictions on the exercise of federal judicial power. See, e.g., Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974); United States v. Raines, 362 U.S. 17, 22-23, 80 S.Ct. 519, 523-524, 4 L.Ed.2d 524 (1960). The limitation derives from the conviction that it is imprudent in some circumstances for the courts to exercise power, even though a plaintiff established an" }, { "docid": "5095743", "title": "", "text": "The Court has reviewed the alternative bases for dismissal and concludes that plaintiffs have alleged material facts sufficient to sustain their claim that the court possesses subject matter jurisdiction. Article III of the United States Constitution defines and limits the jurisdiction of United States courts, stating in part that the judicial power shall extend only to cases and controversies. Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). This constitutional requirement has been interpreted by the United States Supreme Court to mean that a plaintiff seeking redress must allege: a. threatened or actual direct injury resulting from the putatively illegal action; and b. an injury that can be fairly traced to the challenged action that is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (“Valley Forge”) [quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)]. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975); Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). These requirements assume constitutional stature because they tend to ensure “a concrete factual context conducive to a realistic appreciation of the conse quences of judicial action.” Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. Thus, even where Congress creates a statutory right of action, as it has through section 304, a litigant suing under such a statute may vindicate his claim only if he meets the constitutional requirements articulated above, although a statutory right of action will excuse a litigant from meeting the federal common law “prudential” requirement of justiciability. Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206. See also Valley Forge, 454 U.S. at 487-88 n. 24, 102 S.Ct. at 766-67 n. 24. 1. General Principles Section 304 of" }, { "docid": "4115066", "title": "", "text": "(E.D. Mich.1973); EEOC Decision No. 71-969 (Dec. 24, 1970), CCH EEOC Decisions (1973) ¶ 6193. Cf. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). We need not deal with this issue, however, because it is apparent from her complaint that the plaintiff is bringing this action because of perceived discrimination against herself, not Mr. Johnson. . The defendant’s argument reflects a fundamental confusion with regard to the problem of standing. “The question of standing is whether the litigant is entitled to have the court decide the merits of the dispute.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). This question has two dimensions. The constitutional dimension is that which looks to the litigant’s “personal stake in the outcome of the controversy.” Warth v. Seldin, supra, quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). To meet the “case or controversy” requirement of Article III a plaintiff must allege some “injury in fact,” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), for the jurisdiction of a federal court may be invoked only where the plaintiff himself has suffered “some threatened or actual injury resulting from a putatively illegal action.” S. v. D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 D.Ed.2d 536 (1973). To the extent that the defendant here asserts that AVhitney lacks standing in the constitutional sense, the contention is almost frivolous. She has plainly alleged that she has lost her job and her apartment as a result of the defendant’s assertedly illegal act. The “prudential” dimension of standing, Warth v. Seldin, supra, is also irrelevant to this case. It involves the proposition that “even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of [others].” Warth v. Seldin, supra, 422" }, { "docid": "22368612", "title": "", "text": "which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The standing question focuses upon the party asserting the claim because “[t]he Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action ....’ Linda R. S. v. Richard D., 410 U.S. 614, 617, [93 S.Ct. 1146, 1148, 35 L.Ed.2d 536] (1973).” Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205. This constitutional dimension of the standing requirement is sometimes described as a requirement that the plaintiff allege “injury in fact.” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 218, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974); Ass’n of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Additionally, the courts have imposed standing limitations beyond those required by the Constitution. These prudential limitations arise from a concern that the courts not “be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. at 2206. Thus, the courts have held that when the alleged harm is a “generalized” or “abstract” grievance shared by a large class of citizens, jurisdiction will not be exercised. See, e. g., Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205; Schlesinger v. Reservists Committee to Stop the War; United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Ex Parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937). The case or controversy requirement applies to actions under the Declaratory Judgments" }, { "docid": "5258162", "title": "", "text": "United States limits the judicial power of federal courts to cases and controversies. Art. Ill, § 2, cl. 1. It is implicit in this limitation that federal courts may undertake to decide only those disputes capable of and suitable for judicial resolution. “The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617, 621. Such a dispute arises only when it is asserted by a person who has a direct interest in its determination. S. v. D., 1973, 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536. This quality is summed up in the word “standing.” As an aspect of justiciability, standing is, and can only be, demonstrated by a plaintiff who has a personal interest in the outcome of the controversy, not merely an interest as a citizen, however earnest, in obtaining a decision on a question of concern. Schlesinger v. Reservists Committee to Stop the War, 1974, 418 U.S. 208, 220, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706, 718; Ex parte Levitt, 1937, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493. Thus, the “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678. See also Regents of University of California v. Bakke, 1978,-U.S.-,-n. 14, 98 S.Ct. 2733, 2743, 57 L.Ed.2d 750, 765. In essence, a litigant lacks standing to sue in federal court if he does not demonstrate that the actions complained of cause him injury in fact different from that suffered by citizens at large. Compare Association of Data Processing Service Organizations, Inc. v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184. Under our constitution questions of injury to the general public are not" }, { "docid": "23492908", "title": "", "text": "court’s remedial powers on his behalf. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action . . ..” Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). See Data Processing Service v. Camp, 397 U.S. 150, 151-154, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). Id. at 498-99, 95 S.Ct. at 2205 (footnotes omitted) (emphasis in original). This constitutional minimum is sometimes described as the requirement that a plaintiff must allege “injury in fact.” Schiesinger v. Reservists to Stop the War, 418 U.S. 208, 218, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Beyond this “minimum constitutional mandate,” Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. at 2205, the Supreme Court has developed, as a prudential matter of self-governance, certain “other limits on the class of persons who may invoke the courts’ decisional and remedial powers.” Id. Precisely which categories of plaintiffs are excluded on constitutional grounds, and which on prudential grounds, however, is not always easy to ascertain. For example, in Schiesinger v. Reservists to Stop the War, supra, the Court held that a plaintiff class lacked standing, as “citizens,” to challenge the Department of Defense’s policy of permitting Members of Congress to hold posts in the Armed Forces Reserve on the ground that this policy violated the Incompatibility Clause. The Court said that the Secretary’s nonobservance of the Incompatibility Clause “would adversely affect only the generalized interest of all citizens in constitutional governance, and that is an abstract injury.” 418 U.S. at 217, 94 S.Ct. at 2930. In addition, the Court explicitly stated that such an" }, { "docid": "673104", "title": "", "text": "Lynn, 376 F. Supp. 327, 330 (S.D.N.Y., 1974). Yet, the Supreme Court in recent years has addressed the topic frequently in an apparent effort to clarify the situation. The result of their efforts has been some clarification and some liberalization of the doctrine. See e. g., Flast v. Cohen, supra; Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), and Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Standing is but one of the restrictions placed upon the power of the federal judiciary by Article III of the Constitution which prohibits federal courts from deciding cases in which a case or controversy is not alleged. Be sides requiring the party seeking relief to have standing, Article III also restricts federal courts from issuing advisory opinions or deciding political or moot questions. See, Flast v. Cohen, supra, 392 U.S. at 95, 88 S.Ct. 1942, 1949. Standing is distinguished from the other Article III limitations in that “ . it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Id. at 99, 88 S.Ct. at 1952. When the issue of a party’s standing to sue arises, the Court, being ever mindful of Article III, must always ask whether the [claimant] has “ . . . alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions[?].” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See, Flast v. Cohen, supra, 392 U.S. at 99, 88 S.Ct. 1942; Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), and O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674" }, { "docid": "18677476", "title": "", "text": "file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celo- tex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). In this case, there is no dispute regarding the facts material to the issue of standing. The bankruptcy trustee Hadley represents the bankrupt GIC, but is asserting here claims relating solely to fully paid securities of specific GIC customer creditors. We, therefore, must examine the substantive law of standing and bankruptcy to determine if Hadley has standing to pursue such claims. See Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). B. Standing 1. General Principles of Standing The constitutional concerns of standing have been described as follows: “In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Article III”. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Essentially, “the question is whether the person whose standing is challenged is a proper party to request an adjudication o[f] a particular issue and not whether the issue itself is justiciable”. Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Plaintiffs in the federal courts must have a “personal stake in the outcome” of the case, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and “must allege some threatened or actual injury resulting from the putatively illegal action”. Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). “Abstract injury is not enough.... The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Pollard, 578 F.2d at 1005-06. In order to analyze standing, the Supreme Court has formulated a two-component framework, consisting of “irreducible” constitutional requirements and prudential considerations. Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, 102 S.Ct. 752, 758," }, { "docid": "23425500", "title": "", "text": "complaint in this case named as plaintiffs Edward Camara, Jr., “a prospective and intended patron of massage parlors in San Antonio”, and Keith Gates, “a patron of massage parlors in San Antonio”. Camara and Gates sought a declaratory judgment that the customer registration and “peephole” provisions of the ordinance are unconstitutional, and each claimed to be “under a genuine threat of enforcement under the ordinance, with a likelihood of arrest and prosecution should he fail to comply with its provisions”. The district court found that Camara and Gates “have not made the requisite showing to establish their standing to bring or join in the instant suit”. We agree. “In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Article III”. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Essentially, “the question is whether the person whose standing is challenged is a proper party to request an adjudication or a particular issue and not whether the issue itself is justiciable”. Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Plaintiffs in the federal courts must have a “personal stake in the outcome” of the case, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and “must allege some threatened or actual injury resulting from the putatively illegal action”. Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). “Abstract injury is not enough. . The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). If this were an appeal from a judgment granting the defendants’ motion to dismiss for lack of standing, we would be required to accept as true all of the material allegations of the complaint. Warth v. Seldin, supra, 422 U.S. at 501, 95 S.Ct. at 2206; Jenkins v. McKeithen, 395 U.S. 411," }, { "docid": "10265281", "title": "", "text": "is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.. E.g., Barrows v. Jackson, 346 U.S. 249, 255-256, 73 S.Ct. 1031, 1034-1035, 97 L.Ed. 1586 (1953). In both dimensions it is founded in concern about the proper — and properly limited — role of the courts in a democratic society. See Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 221-227, 94 S.Ct. 2925, 2932-2935, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 188-197, 94 S.Ct. 2940, 2952-2956, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct, 691, 703, 7 L.Ed.2d 663 (1962). The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefít others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action.... ’ Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). See Data Processing Service v. Camp, 397 U.S. 150, 151-154, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (emphasis added)(footnotes omitted). In re Levine, 287 B.R. 683 (Bankr.E.D.Mich.2002), a case cited by Plaintiff in support of his position, is not on point. Levine concerned only the settlement of" } ]

[ { "docid": "22952885", "title": "", "text": "of one or more other copyrighted films, except in the case of the United Artists Corporation ; (h) The defendants Paramount and RKO making formula deals. 9. The exhibitor-defendants, Paramount Pictures, Inc.; Loew’s Incorporated; Radio-Keith-Orpheum Corporation; Keith-Albee-Orpheum Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; and National Theatres Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures both before and after the entry of said consent decree, in violation of the Sherman Act by: (a) Jointly operating motion picture theatres with each other and with independents through operating agreements or profit-sharing leases; (b) Jointly owning motion picture theatres with each other and with independents through stock interests in theatre buildings; (c) Conspiring with each other and with the distributor-defendants to fix substantially uniform minimum motion pictures theatre admission prices, runs, and clearances ; (d) Conspiring with the distributor-defendants to discriminate against independent competitors in fixing minimum admission price, run, clearance and other license terms. 10. The Formula deals, master agreements and franchises referred to in Findings 86, 88 and 89 have tended to restrain trade and violate Section 1 of the Sherman Act. 11. Block-booking as hereinabove defined, violates the Sherman Act. 12. Further conclusions of law are made and embodied in the decree filed herewith. DECREE. PER CURIAM. The court having rendered its opinion herein on June 11, 1946, 66 F.Supp. 323, having duly considered the proposals of the parties and of amici curiae as to its ( finding’s and judgment, and having filed! its findings of fact and conclusions of law, wherein certain of the defendants herein were found to have violated the Act of Congress approved July 2, 1890, 26 Stat. 209, commonly known as the Sherman Act. It is hereby ordered, adjudged and decreed, as follows: I. 1. The complaint is dismissed as to the defendants Screen Gems, Inc., and the corporation named as Universal Pictures Company, Inc., merged during the pendency of this case into the defendant Universal Corporation. The complaint is also* dismissed as to all" } ]

[ { "docid": "17293042", "title": "", "text": "decree on November 8, 1948, as against RKO Radio Pictures, Inc.; (2) consent decree on March 3, 1949, as against Paramount Film Distributing Corporation; (3) judgment on February 8, 1950; as against Universal Film Exchanges, Inc., United Artists Corporation, and Columbia Pictures Corporation, the time for appealing therefrom expiring on April 8, 1950; (4) judgment on February 8, 1950, as against Twentieth Century-Fox Film Corporation, Loew’s Incorporated, and Warner Bros. Pictures Distributing Corporation, the appeal therefrom being disposed of by the United States Supreme Court on October 16, 1950. Although the dates of the various decrees in the Paramount case are of importance, we do not believe they are necessarily the sole criteria by which we must determine when the Paramount case ceased to be “pending” as against eight of the nine defendants served with process herein. (National Theatres Corporation, joined as a party defendant, has not been served with process and is not presently before the Court.) Even though a decree may be issued in an anti-trust suit, the Court may still retain jurisdiction over the parties for the purpose of punishing them for subsequent violations of the decree, as well as for the purpose of granting further relief. Don George, Inc. v. Paramount Pictures, Inc., D.C.La., 1952, 111 F.Supp. 458. In fact, it has been brought to this Court’s attention that further decrees have' been made in the Paramount case as late as February 7, 1952. It is perhaps also noteworthy that the Court of Appeals for the Eighth Circuit has held that a consent decree reserving to the United States the right at the end of three years to seek final relief does not result in terminating the pendency of the action. Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 1952, 194 F.2d 846. Since consent decrees have been entered in the Paramount case as against two of the defendants in this action, RKO and Paramount, we think testimony should be proffered on the nature of those decrees, as well as on the current status of the Paramount litigation from an enforcement standpoint. Only then" }, { "docid": "10367647", "title": "", "text": "attorney to testify, replied: “Well, it would be a duplication of whatever was testified to [by David Sablosky].” Abe Sablosky and the three remaining Sablosky brothers, all of whom were plaintiffs, were too ill to testify. (One of them, Thomas, died on April 19, 1955). And, more importantly, in the present case plaintiffs’ theatres were admittedly physically suitable for a first-run operation immediately before 1939, when plaintiffs testified they made their demands. The conflicting evidence on demand raised questions of credibility for the jury, who resolved them in favor of plaintiffs. Their conclusion was a reasonable one and will not be disturbed. Defendants’ second contention in support of its motions is that there was prejudicial error in the handling of the decrees and other materials from United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, a civil antitrust suit begun by the United States Government against these same defendants in 1938. The following were the seven Paramount ease decrees introduced: (1) Decree against RKO, November 8, 1948; (2) Decree against Paramount, March 3, 1949; (3) Decree against Loew’s, Warner Brothers and Twentieth Century-Fox, February 8, 1950; (4) Decree against Columbia and Universal, February 8, 1950; (5) Decree against Warner Brothers, January 4, 1951; (6) Decree against Twentieth Century-Fox, June 7, 1951; (7) Decree against Loew’s, February 7, 1952. The decrees against RKO (1948) and Paramount (1949) are consent decrees. The decrees of February 8, 1950, referred to and incorporated by reference findings of fact and conclusions of law, which the plaintiffs also put in evidence. Before plaintiffs’ counsel was permitted to read portions of the seven decrees and a number of findings of fact and conclusions of law incorporated therein to the jury, the Court made a prefatory statement to the jury defining the scope and purpose of this evidence. The Court first read to the jury the pertinent portion of the following applicable statute, Section 5 of the Clayton Act, 15 U.S. C.A. § 16: “A final judgment or decree rendered in any criminal prosecution or in any suit or proceeding in" }, { "docid": "23400443", "title": "", "text": "district court in the Paramount ease decided that the proper remedy should be a divorcement of the business of the major defendants as exhibí- tors from their business as producers and distributors. The court, in its opinion, declared that vertical integration furnished the incentive for carrying out the conspiracy. 85 F.Supp. 881, 895—896. On November 8, 1948, a consent decree was entered as to R.K.O. It provided for the divorcement of R.K.O.’s theater assets from other assets. See C.C.H. Trade Reg.Rep., Par. 62,335. Two independent corporations were to be formed for that purpose. A similar consent decree was entered as to Paramount on March 3, 1949. C.C.H. Trade Reg.Rep., Par. 62,377. A final decree was entered as to Warner Brothers, Loew’s and Twentieth Century-Fox on February 8, 1950, C.C.H. Trade Reg.Rep., Par. 62,573. This decree was essentially the same as the consent decrees entered against R.K.O. and Paramount. The Supreme Court affirmed on June 5, 1950, United States v. Loew’s, Inc., 339 U.S. 974, 70 S.Ct. 1031, 94 L.Ed. 1380. In 1951, consent judgments were entered against Warner Brothers and Twentieth Century-Fox and were substituted for the earlier decrees. .See C.C.H. Trade Reg.Rep., Pars. 62,765, 62,861. HASTIE, Circuit Judge (dissenting). Believing that findings of the trial court, essential to its decision in appeal No. 10439, are clearly wrong, I think its judgment should be reversed. Moreover, I think that in applying the law to the facts, the district court proceeded on an erroneous conception of the relationship among alleged conspirators which must be proved to establish a combination in violation of the antitrust laws. I It was the district court’s ultimate and decisive finding of fact that the defendant motion picture distributors were “putting into effect in Allentown a general program adopted and adhered to 'by the directing heads of the industry to relegate drive-in theatres generally to a second-run status.” The court explicitly predicated this finding upon the testimony of the eight district managers who represented the defendants in the Allentown area and the approval of their views in affidavits executed by responsible national officers of the defendants and" }, { "docid": "14514354", "title": "", "text": "commission of the unlawful acts charged in the prior action, this is not true when the consent decree is entered after testimony has actually been heard, as where, after the original hearing, the.case is appealed to the Supreme Court and is remanded for further proceedings but not for new trial. The further proceedings required are a continuation of the earlier proceedings. . The DeLuxe case further holds that nothing prevents the submission of a judgment from a prior government action as prima-facie evidence in a later trial although the former trial may have been upon allegations of nation-wide restraints and the later trial largely upon local restraints. Moreover, the entry of the decrees in the Paramount case and of the acts and conduct enjoined thereby are also admissible as prima-facie evidence under Section 5 of the Clayton Act against United Artists Corporation, Columbia Pictures of Louisiana, Inc., Warner Brothers Pictures Distributing Corporation, and Twentieth Century Fox Film Corporation. The final decree as against Columbia, United Artists and Universal was rendered in the District Court on February 8, 1950. The final decree was rendered on the same date as to Twentieth Century Fox, Loew’s and Warner Brothers, U. S. v. Paramount Pictures, D.C., 70 F.Supp. 53, which was affirmed by the Supreme Court of the United States in a memorandum opinion on June 5, 1950, Twentieth Century-Fox Film Corp. v. U. S., 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380. The two decrees of February 8, 1950, above referred to, and the decree of December 31, 1946, which was amended by the decrees of February 8, 1950, are also admissible for the purpose of showing that the statute of limitations was tolled until February 8, 1950, as to Columbia Pictures of Louisiana, Inc., and United Artists Corporation and until June 5, 1950, as to Twentieth Century Fox Film Corporation and Warner Brothers -Pictures Distributing Corporation. On the other hand, the defendants, with apparently equally cogent reasoning, for fifteen pages of their brief, phase by phase, angle by angle, show that the tolling of the statute because of the pendency of" }, { "docid": "15266253", "title": "", "text": "those defendants participating in the consent decree, no problem can arise as to the pen-dency of the Government’s action from August 7, 1944 until the date on which judgment became final against them. The final terminating date is different as to the various defendants. RKO and its subsidiaries entered into a final consent judgment and decree on November 8, 1948, and Paramount Pictures, Inc. and its subsidiaries, concluded such a judgment and decree on March 3, 1949. Twentieth Century-Fox, Loew’s Inc. and Warner Bros. Pictures, Inc. continued to litigate the action until October 16, 1950, when their final motion for rehearing of the Supreme Court’s judgment affirming the District Court’s decree was denied. “The issue raised here, however, is whether U. S. v. Paramount was pending against Twentieth Century-Fox Film Corp., Loew’s Inc., Paramount Pictures, Inc., Warner Bros. Pictures, Inc., RKO Radio Pictures, Inc. and their subsidiaries, from November 20, 1940, the date on which the consent decree was entered into by these defendants, to August 7, 1944, when the Government moved for trial on the original and amended and supplemental complaint still pending.” The language to be construed here is, “shall be suspended during the pendency thereof”, in the second paragraph of Section 16, Title 15, U.S.C.A. It might be said with some force that, during the three year trial period of the consent decree, there was an adjudication binding upon the consenting parties as to the course of action enjoined. Though, I think it clear that everything was open for consideration after that period. However, I have concluded that the common sense view of the matter is that United States v. Paramount was pending during the hiatus of the period of the consent decree within the meaning of Section 16 of Title 15, U.S.C.A. The opinions of the Expediting Court and of the United States Supreme Court are explicit that the consent decree was a stop-gap measure to last three years as a trial period. Everything was open for consideration after that time. Any party might then apply to vacate the decree. And, that is exactly what happened." }, { "docid": "14514343", "title": "", "text": "in said suit or proceeding shall be suspended during the pendency thereof.” 15 U.S.C.A. § 16. In the Paramount case, U. S. v. Paramount Pictures, In-c., which is referred to in Articles 14 and 15 of the complaint herein, after the talcing of a great deal of testimony, the United States court handed down an opinion on June 11, 1946, which is reported in D.C., 66 F.Supp. 323, On December 31, 1946, the court made findings of fact and conclusions of law relating to the unlawful conspiracy of the defendants to monopolize the distribution and exhibition of motion pictures all over the United States, including the Shreveport area. These findings may be found in D.C., 70 F.Supp. 53. On May 3, 1948, the Supreme Court of the United States affirmed in part and reversed in part the judgment of the lower court and remanded the case to the district court for proceedings in conformity with its opinion. United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. The Supreme Court eliminated from the- decree the provisions for a system of competitive bidding. On July 25, 1949, an opinion was handed down by the United States District Court after further proceedings on remand and that opinion was reported in D.C., 85 F.Supp. 881. In the meantime, a consent decree was rendered as to RKO on November 8, 1948; and a consent decree was rendered as to Paramount on March 3, 1949. The entry of the RKO consent decree is properly admissible under the allegations of the complaint for the purpose of tolling the statute of limitations under Section 5 of the Clayton Act since the litigation is apparently still pending as to RKO in view of the broad language used in paragraph retaining jurisdiction in said decree as follows: “Jurisdiction of this cause is retained for the purpose of enabling any of the parties to this consent decree to apply to the Court at any time for such orders or direction as may be necessary or appropriate for the construction, modification or carrying out of the same," }, { "docid": "14514356", "title": "", "text": "the Paramount case does not save the case of the plaintiffs. Here is the brief chronological history they give of the procedural steps in United States v. Paramount. July 20, 1938 — Complaint filed. November 14, 1940 — Amended complaint filed. November 20, 1940 — RKO, Warner, Loew’s Paramount and Fox entered consent decree. August 7, 1944 — Government moved to modify. March. 5, 1945 — Hearing on motion for preliminary injunction on clearance. June 13, 1945 — Government filed application for information of an Expediting Court. November 1945 i- Hearings were held on all issues framed by 1940 pleadings. June 11, 1946 December 31, 1946 — Opinion of Expediting Court. — Entry of Findings of Fact, Conclusions of Law and Decree. May 3, 1948 — Supreme Court affirmed in part, reversed in part and remanded for further proceedings. November 8, 1948 — RKO Consent Decree. March 3, -1949 — Paramount Consent Decree. February 8, 1950 — Decrees entered against Loew’s, Fox, Warner, Columbia, Universal and United Artists. Then, in a very scholarly and thorough manner, the following subjects are fully treated: a. In legal effect a consent decree is indistinguishable from a contested decree. b. The introductory clauses of the 1940 consent decree are similar to clauses in almost every consent decree. c. The -clause preventing the Government from applying for further relief within three years did not cause that case to remain pending against these defendants. . d. The provisions permitting modification of the 1940 consent decree without showing any change in conditions does not affect its finality. e. The history of United States v. Paramount, et al., subsequent to the entry of the November 20, 1940 consent decree demonstrates the finality of that decree. And their conclusion is that the suit of plaintiffs is not kept alive long enough to be saved by the one-year prescription from the date of the filing of the suit, to wit: August 18, 1950. Omitting the naming of the Louisiana statutes providing prescriptive periods of less than one year, we have these: 1. One year for certain kind of services and" }, { "docid": "13753189", "title": "", "text": "February 7, 1952 would be obiter dicta, a study of the February 8, 1950 and February 7,1952 decrees would seem to me to be the most logical and intelligent manner in which to approach the problem presented. The 1950 decree was entitled “Final Decree”. Its purpose was to adjudicate the issues that were left open on remánd to the District Court by the Supreme Court’s 1948 decision, United States v. Paramount, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, which affirmed in part and reversed in part the District Court’s 1946 decree. 70 F.Supp. 53. The 1950 decree dismissed certain claims and specifically enjoined Loew’s, and the other defendants, from performing certain acts in the conduct of their businesses. The decree further provided for Loew’s and the Government to submit plans of divorcement and divestiture in order for Loew’s to accomplish “the ultimate separation of its distribution and production business from its exhibition business”, Ex. A, Section IV, Par. 1, sufficient to satisfy the requirements of the 1948 Supreme Court decision. Under the 1950 decree, the District Court retained jurisdiction in order to enable the parties to apply to the court “for other or further relief”. The 1950 decree was appealable and was, in fact, appealed, the Supreme Court affirming in all respects. Ball v. United States, 338 U.S. 802, 70 S.Ct. 61, 94 L.Ed. 486. The 1952 decree was entered against Loew’s individually. It was “in lieu of and in substitution for” the 1950 decree. A comparison of the injunctive provisions of the 1950 decree with those of the 1952 decree immediately reveals that, in this respect, the two decrees are substantially identical except for the fact that the 1952 decree provided detailed plans of divorcement and divestiture in which Loew’s agreed to divest itself of certain named theatres in various areas throughout the country. Ex. B, Sections IV, V, and VI. A salient feature of the 1952 decree is the footnote appearing on page 63, Section IX of the decree. This footnote is in reference to the District Court’s decrees dated December 31, 1946, as amended, and" }, { "docid": "4281274", "title": "", "text": "to a distributor by one group of prospective purchasers over appellant, there is no reason that the latter can complain. If appellant had built the theatre in the heart of the Mojave, there might have been other economic discriminations of which to complain. In considering whether there has been unlawful discrimination, the courts hold that an individual distributor not engaged in a conspiracy may consider in determining whether to give a preferential clearance to a particular motion picture house, such as Baldwin, the admission prices charged there, all the factors involved in the location and availability of the particular theatre, the possibility and probability of similar applications by theatres adjacent to that making the application, the competition existing or to be expected with other theatres in the area, the policies followed or to be expected of the applying theatre, since policy of exhibition must ordinarily be consistent, and the policy of the particular distributor as to the use of “showcase” exhibition. The net result is that this is an appeal solely on questions of fact. Notwithstanding the reversal of some District Courts in this field upon the basis of erroneous findings, we do not think the appeal on the facts and the weight of the evidence in this case from an able and experienced judge who had experience in the exact area was justified. Although this Court has reviewed the long and complicated record with extreme care because of the questions of fact so raised, we do not believe an appellate court, already burdened, should have been required to pass on such questions. Affirmed. . Milgram v. Loew’s, Inc., 3 Cir., 192 F.2d 579. In that case, the trial court found conspiracy on the facts, and the appellate court affirmed. However, see dissenting opinion by Hastie, C. J., 192 F.2d at pages 587-595. . The decrees in evidence are as follows: United States v. Paramount Theatres Corporation, decree, December 31, 1946; findings of fact, conclusions of law and decree, June 11, 1946; decree, March 31, 1948; decree, May 3, 1948, D.C., 66 F.Supp. 323 ; 70 F.Supp. 53, reversed in" }, { "docid": "23400442", "title": "", "text": "the finding below. This was particularly stressed in the opinion of the Court of Appeals for the Second Circuit in Fifth & Walnut, Inc., v. Loew’s, Inc., supra. For exam ple, in speaking of a move-over arrangement there, the court stated, 176 F.2d p. 591: “This is not to say that the jury could not have found, particularly against the background of the motion picture industry as it is now known, that the move-over arrangement was part of such a conspiracy. But the jury did not so find, and the alternative which they chose was properly offered to them in the court’s charge.” See also Bordonaro Bros. Theatres v. Paramount Pictures, 2 Cir., 1949, 176 F.2d 594, where a finding of conspiracy was affirmed. . The reasons relating to weather and climate would, of course, be less applicable in the South and in southern California. . See Footnote 8, infra. . The Philadelphia Exchange area of all the distributors includes eastern Pennsylvania, southern New Jersey, and parts of Delaware, including Wilmington. . On remand, the district court in the Paramount ease decided that the proper remedy should be a divorcement of the business of the major defendants as exhibí- tors from their business as producers and distributors. The court, in its opinion, declared that vertical integration furnished the incentive for carrying out the conspiracy. 85 F.Supp. 881, 895—896. On November 8, 1948, a consent decree was entered as to R.K.O. It provided for the divorcement of R.K.O.’s theater assets from other assets. See C.C.H. Trade Reg.Rep., Par. 62,335. Two independent corporations were to be formed for that purpose. A similar consent decree was entered as to Paramount on March 3, 1949. C.C.H. Trade Reg.Rep., Par. 62,377. A final decree was entered as to Warner Brothers, Loew’s and Twentieth Century-Fox on February 8, 1950, C.C.H. Trade Reg.Rep., Par. 62,573. This decree was essentially the same as the consent decrees entered against R.K.O. and Paramount. The Supreme Court affirmed on June 5, 1950, United States v. Loew’s, Inc., 339 U.S. 974, 70 S.Ct. 1031, 94 L.Ed. 1380. In 1951, consent judgments were" }, { "docid": "22373227", "title": "", "text": "to March 1950. Indeed, the relevancy of Paramount to the instant case is slight. We need not pass on respondents’ contention that petitioner was entitled to no benefit at all from the earlier decrees. We merely hold that petitioner was entitled to no greater benefit than the trial judge gave it. Affirmed. Mr. Justice Black would reverse, being of opinion that the trial judge’s charge to the jury as to the burden of proof resting on petitioner deprived it of a large part of the benefits intended to be afforded by the prima facie evidence provision of § 5 of the Clayton Act. Mr. Justice Douglas withdrew from the case after its submission and took no part in this decision. 38 Stat. 731, 737, 15 U. S. C. §§ 15, 26. Respondents are: Paramount Film Distributing Corp., Loew’s Inc., RKO Radio Pictures, Inc., Twentieth Century-Fox Film Corp., Universal Film Exchanges, Inc., United Artists Corp., Warner Bros. Pictures Distributing Corp., Warner Bros. Circuit Management Corp., Columbia Pictures Corp. Sections 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, and § 2 of the Clayton Act, 38 Stat. 730, as amended, 15 U. S. C. § 13. Petitioner has dropped the allegation of a Clayton Act violation. “Runs are successive exhibitions of a feature in a given area, first-run being the first exhibition in that area, second-run being the next subsequent, and so on . . . United States v. Paramount Pictures, Inc., 334 U. S. 131, 144-145, n. 6 (1948). “A clearance is the period of time, usually stipulated in license contracts, which must elapse between runs of the same feature within a particular area or in specified theatres.” United States v. Paramount Pictures, Inc., 334 U. S. 131, 144, n. 6 (1948). 66 F. Supp. 323 (1946), 70 F. Supp. 53 (1946), reversed and remanded in part, 334 U. S. 131 (1948), 85 F. Supp. 881 (1949), affirmed, 339 U. S. 974 (1950). A first-run “day and date” means that two theatres exhibit a first-run at the same time. Had" }, { "docid": "10367648", "title": "", "text": "Decree against Paramount, March 3, 1949; (3) Decree against Loew’s, Warner Brothers and Twentieth Century-Fox, February 8, 1950; (4) Decree against Columbia and Universal, February 8, 1950; (5) Decree against Warner Brothers, January 4, 1951; (6) Decree against Twentieth Century-Fox, June 7, 1951; (7) Decree against Loew’s, February 7, 1952. The decrees against RKO (1948) and Paramount (1949) are consent decrees. The decrees of February 8, 1950, referred to and incorporated by reference findings of fact and conclusions of law, which the plaintiffs also put in evidence. Before plaintiffs’ counsel was permitted to read portions of the seven decrees and a number of findings of fact and conclusions of law incorporated therein to the jury, the Court made a prefatory statement to the jury defining the scope and purpose of this evidence. The Court first read to the jury the pertinent portion of the following applicable statute, Section 5 of the Clayton Act, 15 U.S. C.A. § 16: “A final judgment or decree rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States under the antitrust laws to the effect that a.defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against said defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto; Provided, This section shall not apply to consent judgments or decrees entered before any testimony has been taken.” The jury also was told by the Court that it was permitting the reading of (1) “only such portions of the final decrees and findings of fact and conclusions of law incorporated therein as relate to the specific charges of conspiracy contained in the complaint in the present case” and (2) “those portions of the decrees which relate directly to the evidence of the particular acts of the defendant distributors which are claimed to be illegal in the case now on trial.” The jury - also was instructed that the Paramount" }, { "docid": "17293041", "title": "", "text": "limitation period, depends upon proof of defendants’ alleged infractions of the Sherman Act, and the effect of the Clayton Act tolling provision. On July 20, 1938, the United States instituted an equity suit in the United States District Court for the Southern District of, New York, charging anti-trust violations to have been committed by all of the defendants involved in the instant action, except defendant Fox Midwest Theatres, Inc., which was not made a party to that Government action. See United States v. Paramount Pictures, Inc., D.C., 66 F.Supp. 323; 70 F.Supp. 53; 85 F.Supp. 881; 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260; Loew’s Inc. v. United States, 339 U.S. 974, 70 S.Ct. 1031, 94 L.Ed. 1380; Id. 340 U.S. 857, 71 S.Ct. 69, 95 L.Ed. 627. Concededly, the earliest possible decree handed down as against any defendant in that Government action, momentarily ignoring subsequent appeals and reconsideration, was not made until November 8, 1948. Looking to the Paramount case, we find the decrees therein to have been rendered as follows: (1) consent decree on November 8, 1948, as against RKO Radio Pictures, Inc.; (2) consent decree on March 3, 1949, as against Paramount Film Distributing Corporation; (3) judgment on February 8, 1950; as against Universal Film Exchanges, Inc., United Artists Corporation, and Columbia Pictures Corporation, the time for appealing therefrom expiring on April 8, 1950; (4) judgment on February 8, 1950, as against Twentieth Century-Fox Film Corporation, Loew’s Incorporated, and Warner Bros. Pictures Distributing Corporation, the appeal therefrom being disposed of by the United States Supreme Court on October 16, 1950. Although the dates of the various decrees in the Paramount case are of importance, we do not believe they are necessarily the sole criteria by which we must determine when the Paramount case ceased to be “pending” as against eight of the nine defendants served with process herein. (National Theatres Corporation, joined as a party defendant, has not been served with process and is not presently before the Court.) Even though a decree may be issued in an anti-trust suit, the Court may still retain jurisdiction" }, { "docid": "4281275", "title": "", "text": "Notwithstanding the reversal of some District Courts in this field upon the basis of erroneous findings, we do not think the appeal on the facts and the weight of the evidence in this case from an able and experienced judge who had experience in the exact area was justified. Although this Court has reviewed the long and complicated record with extreme care because of the questions of fact so raised, we do not believe an appellate court, already burdened, should have been required to pass on such questions. Affirmed. . Milgram v. Loew’s, Inc., 3 Cir., 192 F.2d 579. In that case, the trial court found conspiracy on the facts, and the appellate court affirmed. However, see dissenting opinion by Hastie, C. J., 192 F.2d at pages 587-595. . The decrees in evidence are as follows: United States v. Paramount Theatres Corporation, decree, December 31, 1946; findings of fact, conclusions of law and decree, June 11, 1946; decree, March 31, 1948; decree, May 3, 1948, D.C., 66 F.Supp. 323 ; 70 F.Supp. 53, reversed in part, affirmed in part and remanded to the statutory court by the Supreme Court of the United States, 334 U.S, 131, 68 S.Ct. 915, 92 L.Ed. 1260; United States v. RKO, consent decree, November 8, 1948; United States v. Paramount, consent decree, March 31, 1949. Orders severing and terminating the litigation were entered as to Paramount April 21, 1949, and as to RKO January 18, 1950. On February 8, 1950, the statutory court in United States v. Paramount (Paramount being no longer a party) entered a decree against Loew’s, Warner’s and Fox, and a decree against Columbia, Universal and United Artists. . On the basis of some clerical slips as to figures and dates in the opinion of the trial court, appellant also complains that some of the decrees in evidence as exhibits were not considered. The contention has no merit, since the dating on the exhibits themselves in evidence is confused. . Fanchon & Marco v. Paramount Pictures, Inc., D.C., 100 F.Supp. 84, 88. . There is no charge here of a conspiracy to" }, { "docid": "13230129", "title": "", "text": "contempt is a “serious” offense entitling the con-temnor, regardless of its financial circumstances, to a jury trial, we hold that this point is reached once a fine exceeds $100,-000. Accordingly, we vacate the penalty imposed on Fox for lack of a jury trial. We affirm Goldstein’s conviction in all respects. Facts In 1938, the Government brought an antitrust action against the eight largest motion picture companies in the United States, including Fox. The original complaint alleged that the defendant companies combined to restrain trade in the production, distribution, and exhibition of movies, in violation of the Sherman Anti-Trust Act. The companies engaged in a variety of practices that “eliminate[d] the opportunity for the small competitor to obtain the choice first runs.” United States v. Paramount Pictures, Inc., 334 U.S. 131, 154, 68 S.Ct. 915, 927-28, 92 L.Ed. 1260 (1948). One of the most common practices was “block-booking” — conditioning the licensing of one film or group of films upon the licensing of one or more additional films. After protracted litigation, see United States v. Paramount Pictures, Inc., 66 F.Supp. 323 (S.D.N.Y.1946), judgment entered, 70 F.Supp. 53 (S.D.N.Y.1946), aff'd in part and rev’d in part, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), decision on remand, 85 F.Supp. 881 (S.D.N.Y.1949), aff'd, 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380 (1950), Fox and the other studios agreed to the entry of a consent decree in 1951, United States v. Loew’s Inc., 1950-1951 Trade Cas. (CCH) 1162,861 (S.D.N.Y.1951). Section 11(7) of the decree enjoins Fox from engaging in blockbooking: The defendant-distributor Twentieth Century-Fox Film Corporation, its officers, agents, servants and employees and its subsidiaries and any successor in interest are hereby enjoined: 7. From performing or entering into any license in which the right to exhibit one feature is conditioned upon the licensee’s taking one or more other features. Id. at 64,545-46. In 1978 Fox was indicted for violating section 11(7) of the decree and, upon its plea of nolo contendere, was fined $25,000 plus costs of $18,170. The litigation at issue on this appeal was initiated in October 1988," }, { "docid": "15266252", "title": "", "text": "toll the statute during the period covered by the consent decrees. In order more graphically to picture the situation, the following outline is provided: We adopt the following statement of the issue from brief of plaintiff’s counsel: “There can be no question that this action was pending as to all defendants from July 30, 1938, the date on which the complaint in U. S. v. Paramount was filed, until November 20, 1940, when a consent decree was entered into between the Government and the defendants Twentieth Century-Fox Film Corp., Warner Bros. Pictures, Inc., Loew’s Inc., Paramount Pictures, Inc., RKO Radio Pictures, Inc., and their subsidiaries. As to the defendants not consenting to the decree, Columbia Pictures, United Artists and Universal Pictures, Inc., there can be no question that the action remained pending during the period after the consent decree and continued to be pending against them after the Government’s motion for trial on August 7, 1944, at least, until the final judgment of the District Court was rendered on February 8, 1950. Similarly, as to those defendants participating in the consent decree, no problem can arise as to the pen-dency of the Government’s action from August 7, 1944 until the date on which judgment became final against them. The final terminating date is different as to the various defendants. RKO and its subsidiaries entered into a final consent judgment and decree on November 8, 1948, and Paramount Pictures, Inc. and its subsidiaries, concluded such a judgment and decree on March 3, 1949. Twentieth Century-Fox, Loew’s Inc. and Warner Bros. Pictures, Inc. continued to litigate the action until October 16, 1950, when their final motion for rehearing of the Supreme Court’s judgment affirming the District Court’s decree was denied. “The issue raised here, however, is whether U. S. v. Paramount was pending against Twentieth Century-Fox Film Corp., Loew’s Inc., Paramount Pictures, Inc., Warner Bros. Pictures, Inc., RKO Radio Pictures, Inc. and their subsidiaries, from November 20, 1940, the date on which the consent decree was entered into by these defendants, to August 7, 1944, when the Government moved for trial on" }, { "docid": "14514355", "title": "", "text": "February 8, 1950. The final decree was rendered on the same date as to Twentieth Century Fox, Loew’s and Warner Brothers, U. S. v. Paramount Pictures, D.C., 70 F.Supp. 53, which was affirmed by the Supreme Court of the United States in a memorandum opinion on June 5, 1950, Twentieth Century-Fox Film Corp. v. U. S., 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380. The two decrees of February 8, 1950, above referred to, and the decree of December 31, 1946, which was amended by the decrees of February 8, 1950, are also admissible for the purpose of showing that the statute of limitations was tolled until February 8, 1950, as to Columbia Pictures of Louisiana, Inc., and United Artists Corporation and until June 5, 1950, as to Twentieth Century Fox Film Corporation and Warner Brothers -Pictures Distributing Corporation. On the other hand, the defendants, with apparently equally cogent reasoning, for fifteen pages of their brief, phase by phase, angle by angle, show that the tolling of the statute because of the pendency of the Paramount case does not save the case of the plaintiffs. Here is the brief chronological history they give of the procedural steps in United States v. Paramount. July 20, 1938 — Complaint filed. November 14, 1940 — Amended complaint filed. November 20, 1940 — RKO, Warner, Loew’s Paramount and Fox entered consent decree. August 7, 1944 — Government moved to modify. March. 5, 1945 — Hearing on motion for preliminary injunction on clearance. June 13, 1945 — Government filed application for information of an Expediting Court. November 1945 i- Hearings were held on all issues framed by 1940 pleadings. June 11, 1946 December 31, 1946 — Opinion of Expediting Court. — Entry of Findings of Fact, Conclusions of Law and Decree. May 3, 1948 — Supreme Court affirmed in part, reversed in part and remanded for further proceedings. November 8, 1948 — RKO Consent Decree. March 3, -1949 — Paramount Consent Decree. February 8, 1950 — Decrees entered against Loew’s, Fox, Warner, Columbia, Universal and United Artists. Then, in a very scholarly and thorough" }, { "docid": "17667758", "title": "", "text": "of plaintiff against the distributor defendants. As to them, the next question is, from what date is the running of the two years statute of limitations computed? Defendants say it is June 25, 1948. Plaintiff says it is February 8, 1950. The date of June 25, 1948 is when the district court entered a decree on the mandate of the Supreme Court following its decision of May 3, 1948 in United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. February 8, 1950 is the date on which the district court, after the remandment by the Supreme Court, entered other decrees, which included the matters involved in the remandment. Loew’s, Twentieth Century Fox and another ’ appealed and, on June 5, 1950, the Supreme Court affirmed. On October 16, 1950, the petitions of .these three for rehearing were denied. The appeal time expired for United Artists Corporation, Columbia Pictures Corporation, Universal Film Exchanges, Inc., and Warner Bros. Pictures Distributing Corporation on April 9, 1950. The difference of opinion arises from disagreement of the parties hereto as to the application of the word “pendency” in § 16 of the antitrust laws, which at the time relevant to this case, read as follows: “A final judgment or decree rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, This section shall not apply to consent judgments or decrees entered before any testimony has been taken. “Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right" }, { "docid": "4281276", "title": "", "text": "part, affirmed in part and remanded to the statutory court by the Supreme Court of the United States, 334 U.S, 131, 68 S.Ct. 915, 92 L.Ed. 1260; United States v. RKO, consent decree, November 8, 1948; United States v. Paramount, consent decree, March 31, 1949. Orders severing and terminating the litigation were entered as to Paramount April 21, 1949, and as to RKO January 18, 1950. On February 8, 1950, the statutory court in United States v. Paramount (Paramount being no longer a party) entered a decree against Loew’s, Warner’s and Fox, and a decree against Columbia, Universal and United Artists. . On the basis of some clerical slips as to figures and dates in the opinion of the trial court, appellant also complains that some of the decrees in evidence as exhibits were not considered. The contention has no merit, since the dating on the exhibits themselves in evidence is confused. . Fanchon & Marco v. Paramount Pictures, Inc., D.C., 100 F.Supp. 84, 88. . There is no charge here of a conspiracy to fix prices. The trial court so recites in the opinion on file. No allegation of an attempt to fix prices is made in the complaint. And, in response to questions from the Court on oral argument, counsel for appellant admitted this is not a case based upon price fixing. The question as to whether there was a conspiracy was fully considered upon the basis laid in the trial court by the complaint and other proceedings. The findings on this point were positive. This distinguishes J. J. Theatres v. Twentieth Century-Fox Film Corporation, 2 Cir., 212 F.2d 840, where the question of conspiracy to deprive the theatre of preferred position was withdrawn from the jury. . D.C., 100 F.Supp. 84, 95. . D.C., 100 F.Supp. 84, 104." }, { "docid": "13753188", "title": "", "text": "on February 8, 1950, and on October 16, 1950, the Supreme Court, 340 U.S. 857, 71 S.Ct. 69, 95 L.Ed. 627 denied Loew’s a rehearing. Both the February 8, 1950 and February 7, 1952 decrees have been presented to the Court and marked as exhibits A and B, respectively. In support of his contention, plaintiff’s counsel relies almost entirely on a statement taken from Sun Theatre Corp. v. B.K.O. Badio Pictures, 7 Cir., 213 F. 2d 284. In this opinion, Judge Lindley states at page 289: “This litigation [United States v. Paramount], which resulted in a decree against all defendants, was finally terminated as to all on February 7, 1952, when a decree was entered against Loew’s Incorporated.” Observing, but not deciding, that there might be a substantial difference in meaning between the word “terminated” and the word “pendency” as the latter word is used in Section 5 of the Clayton Act, and considering that any statement in the Sun case to the effect that the Paramount case ceased to pend as to Loew’s on February 7, 1952 would be obiter dicta, a study of the February 8, 1950 and February 7,1952 decrees would seem to me to be the most logical and intelligent manner in which to approach the problem presented. The 1950 decree was entitled “Final Decree”. Its purpose was to adjudicate the issues that were left open on remánd to the District Court by the Supreme Court’s 1948 decision, United States v. Paramount, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, which affirmed in part and reversed in part the District Court’s 1946 decree. 70 F.Supp. 53. The 1950 decree dismissed certain claims and specifically enjoined Loew’s, and the other defendants, from performing certain acts in the conduct of their businesses. The decree further provided for Loew’s and the Government to submit plans of divorcement and divestiture in order for Loew’s to accomplish “the ultimate separation of its distribution and production business from its exhibition business”, Ex. A, Section IV, Par. 1, sufficient to satisfy the requirements of the 1948 Supreme Court decision. Under the 1950" } ]

[ { "docid": "23126547", "title": "", "text": "F.2d 353, the court announced the general rule, and held that the absent parties were not indispensable, saying that it was within the power of a court of equity to deprive a party of the benefit of a deed or judgment obtained by fraud without setting it aside. The appellate court differed from the district court in that the latter “thought a decision involved the setting aside of deeds,” 74 F.2d at page 356. See opinion of the learned district judge, Seeley v. Cornell, D.C., 6 F.Supp. 241. In Seeley v. Cornell, 5 Cir., 90 F.2d 562,. we find nothing to sustain the theory that the question of indispensable parties is not jurisdictional in diversity cases. In Spring v. Ohio Oil Co., 5 Cir., 108 F.2d 560, the absent parties were held to be not indispensable, since no relief was sought against them and a .decree could be framed to protect them. Seeley v. Hunt, 5 Cir., 109 F.2d 595, is not at all applicable. The point we are considering was not even discussed, it being the third appeal of another case abstracted in this note. On a prior appeal the court had ordered a full and complete accounting. State of Washington v. United States, 9 Cir., 87 F.2d 421, also cited in the dissenting opinion, was a suit by the United States against certain parties, alleging that they had trespassed upon Sand Island, and would continue to do so unless enjoined. The Court held that the State of Washington was an indispensable party, but said that the absence of such party was not jurisdictional. It was not jurisdictional because there the suit was brought by the United States, and the federal district court had original jurisdiction without regard to the citizenship of the parties. 28 U.S.C.A. § 41, subd. (1). It is only where jurisdiction depends solely upon diversity Of citizenship that the absence of indispensable parties absolutely defeats federal jurisdiction. In analyzing federal decisions, we must keep this distinction constantly in mind to avoid being confused by them. This is also true in considering the decisions of state" } ]

[ { "docid": "18695838", "title": "", "text": "procedural posture of some cases, the parties seeking to enforce such rights may be the defendants and/or intervenors. See e. g. Shelley v. Kraemer, 334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. 1161] (1948). S.Rep.No.94-1011, 94th Cong.2d Sess. 4, n. 4, U.S.Code Cong. & Admin.News, 1976, pp. 5908, 5912 (1976). In Shelley v. Kraemer, supra, cited by the Senate Report, the Supreme Court reversed judgments of the Missouri and Michigan Supreme Courts. In the state courts, white plaintiffs had prevailed in their claims that restrictive racial covenants in the deeds of certain property were valid, and prevented blacks from owning the property. The Supreme Court held that the restrictive covenants violated the Fourteenth Amendment, and reversed. In that case, it happened that the parties whose rights were vindicated were defendants. In the case at bar, it happens that the intervenors were defendants. They just as easily could have been plaintiffs or intervening plaintiffs had they, the United States, or other black officers filed suit against the City. The Civil Rights Attorney’s Fee Act is to be liberally construed to effectuate its purposes. See Northcross v. Bd. of Ed. of Memphis Schools, 611 F.2d 624, 632-33 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). The procedural posture of the case should not be dispositive. The intervenors have vindicated their rights, and this Court believes it just and reasonable for the union to pay their attorney’s fees. Accordingly, this Court does not feel that the restrictive Christiansburg defendant-recovery rule is applicable here. See Riddell v. Nat’l Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980); Kingsville Indep. School Dist. v. Cooper, 611 F.2d 1109, 1114 (5th Cir. 1980). See also Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979) (attorney’s fees awarded against intervening defendant pursuant to the Emergency School Act of 1972); Brennan v. United Steelworkers of America, 554 F.2d 586 (3rd Cir. 1977), cert. denied, 435 U.S. 977, 98 S.Ct. 1627, 56 L.Ed.2d 71 (1978). (Intervening plaintiff in Landrum-Griffin Act case could recover attorney’s fees). In summary, this Court finds that an award" }, { "docid": "3435441", "title": "", "text": "of those expressions here. We deem it sufficient to say that the general language employed in the Civil Rights Act does not evidence a clear Congressional intent to impair the long standing rule of judicial immunity. Defendant, as a justice of the peace having jurisdiction of the parties and the subject matter, is entitled to the protection afforded by the rule of judicial immunity. McIntosh v. Bullard, Earnheart & Magness, 95 Ark. 227, 129 S.W. 85; Yaselli v. Goff, 2 Cir., 12 F.2d 396. We conclude, therefore that the trial court did not err in sustaining the motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. We have considered all of the cases cited in support of plaintiffs’ position but do not find them inconsistent with our decision herein. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, appears not to be in point here. In that case the Supreme Court reversed judgments of the Supreme Courts of Missouri and Michigan granting judicial enforcement of private restrictive covenants. The Supreme Court held that in granting judicial enforcement of such private agreements, the states acted to deny petitioners the equal protection of the laws, contrary to the 14th Amendment. We do not read the opinion as passing on the question of judicial immunity. As our decision on the question of judicial immunity requires affirmance of the judgment of dismissal it becomes unnecessary to consider plaintiffs’ other arguments on the appeal to the effect that the complaint stated a claim under the Civil Rights Act and the 14th Amendment. The judgment appealed from is affirmed. . Arkansas Statutes, § 27-301, provides: “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.” Arkansas Statutes, § 31-501, provides: “In all cases where any plaintiff may begin an action in any court of record, or before any justice of the peace, or may have obtained a judgment before any of such courts, and such" }, { "docid": "223273", "title": "", "text": "(1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); the “state compulsion” test, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); the “nexus\" test, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Auth., supra; and the “joint action” test, see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The Court questioned whether these tests are actually different in operation or are simply different ways of “characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation.” Lugar, 457 U.S. at 939, 102 S.Ct. at 2755. The Court concluded that, in the final analysis, the state action determination must be based on the specific facts and the entire context of a given case. “ ‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in .private conduct be attributed its true significance.’ ” Id. (citing Burton, 365 U.S. at 722, 81 S.Ct. at 860). At the outset of this “necessarily fact-bound inquiry,” it is instructive to examine the key facts of relevant precedents in which the Court has traced the line that separates private conduct from government action. In Shelley v. Kraemer, supra, the Court established that the equal protection clause forbids judicial enforcement of private, racially restrictive covenants. The Court held that enforcement of such private agreements by judicial officers in their official capacities amounted to state action. The Court applied a but for analysis, reasoning that, absent the intervention of the enforcing court, supported by the full panoply of state power, the persons excluded by the covenants would have been free to occupy the properties at issue. 334 U.S. at 19, 68 S.Ct. at 845. In Burton v. Wilmington Parking Auth., supra, the Court found that the state acted when a privately owned restaurant located in a state owned and operated parking garage refused to serve a" }, { "docid": "902224", "title": "", "text": "order to enjoin the Recorder of Deeds from accepting such covenants for filing in the future. Moreover, they seek certain corrective measures which would withdraw state approval from restrictive covenants already on file. Specifically, they ask for a declaration that their rights have been violated by the recording of racial covenants, for an order requiring the Recorder to affix a sticker on each liber volume stating that restrictive covenants found therein are null and void, and for an injunction preventing the Recorder from providing copies of instruments on file unless a similar notice is attached to the copies. When the District Court dismissed their complaint, appellants renewed their arguments in this court. A three-judge panel held that the District Court should be affirmed, whereupon a majority of the judges of this court voted to reconsider the case en banc. We reverse. For decades, the Recorder’s office has accepted these covenants for filing and maintained them as public records. Appellants contend that this official legiti mization of racist agreements so deeply involves the state in private discrimination as to violate the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Cf. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). Moreover, appellants argue, even if the Recorder’s actions are constitutional, they entail the making and publication of a notice or statement of a racial preference with respect to the sale of a dwelling and, hence, are unlawful under Title VIII of the Fair Housing Act of 1968. See note 1 supra. Finally, appellants point to local statutes which permit the Recorder to accept only those documents “affecting the title or ownership of real estate,” 45 D.C. Code § 701(a) (1) (1967), and which forbid him from recording instruments “not * * * executed * * * agreeably to law.” 45 D.C.Code § 503 (1967). Since restrictive covenants have not affected “the title or ownership of real estate” since Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and have not been" }, { "docid": "8394229", "title": "", "text": "this contention falls in the former category, and that the consent judgment is void because it “violated RFRA in the first place.” (Northridge Reply Br. 25; see also id. at 10 n. 4 (“[P]arties cannot, by consent or otherwise, agree to violate federal law.”).) In support of this argument, Northridge directs us to the Second Circuit’s decision in Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.1963), the Supreme Court’s opinion in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and our own opinion in Safeco Insurance Co. of America v. City of White House, 191 F.3d 675 (6th Cir.1999) (“Safeco Insurance ”). None of these decisions is on point. As an initial matter, Safeco Insurance is entirely inapposite because it deals with purportedly unconstitutional regulations, not consent judgments or other judicially enforced agreements. 191 F.3d at 684. Meanwhile, in Kraemer, the Supreme Court invalidated racially restrictive covenants in land deeds because, though “defined initially by the terms of a private agreement,” the covenants “denied petitioners the equal protection of the laws.” 334 U.S. at 20, 68 S.Ct. 836. The Court reasoned that state action countenancing racial discrimination against other individuals, who were not parties to the initial covenant, could not escape the Equal Protection Clause’s reach simply because a private party at some point agreed to the covenants. Id. at 20-21, 68 S.Ct. 836. There is no similar effect here on the rights of non-parties to the original agreement. While parties may not agree to an imposition on another person’s rights, see id., courts regularly allow individuals to forego — or “waive” — the full scope of their own rights, for example, in the context of a criminal defendant accepting a plea bargain. See, e.g., New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (“[W]e have recognized that the most basic rights of criminal defendants are subject to waiver....” (internal quotation marks and brackets omitted)). Finally, in Crosby, the Second Circuit set aside an “order[,] entered on consent,” that required a party “to refrain from publishing matter about”" }, { "docid": "10779502", "title": "", "text": "The callousness of the judicial approach at the time is exhibited by the court’s comments in Schulte v. Starks, supra, 238 Mich, at 105, 213 N.W. at 102: “The fact that defendants are colored persons is established by their own admissions while on the witness stand and by the finding to that effect by the trial judge who saw them in court. The record does disclose, however, that Mrs. Starks is quite light colored, and she testified that many many times she has been taken for a white woman.” The adjudication process was a simple one. No grave constitutional issues here, no questions of human rights. The only issue was a simple factual one: Are the prospective occupants of the realty black? If they are, the matter is ended. The covenant is enforceable. The mere fact that the Starks were Black triggered a discriminatory practice, upheld and enforced by the state. Racially restrictive covenants had effects beyond the creation of segregated neighborhoods. When coupled with policies aimed at creating and maintaining harmonious neighborhoods, they inevitably gave rise to the general idea that one could buy a right to a parochial school system carved out of a public system of compulsory “ . free public elementary and secondary schools as defined by law.” Such a notion is an invidious discriminatory result fostered by “State action under col- or of law.” Racially restrictive covenants have not been the only discriminatory device which grew up after the Civil War. Mere blackness has historically triggered racial discrimination in education, housing, employment, lending institutions, “separate but (supposedly) equal” accommodations, political, social, economic relations, public and private, much of which is “under color of law.” To the country’s detriment, discrimination became habitual in the North as well as in the South. See Strauder, supra. In a landmark case in 1948, the Supreme Court of the United States held that enforcement by state courts of racially restrictive covenants was itself state action which violated the Equal Protection Clause of the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Judicial enforcement" }, { "docid": "1773635", "title": "", "text": "the point, the question is whether the State has purged itself of the discriminatory connection. Plaintiffs, citing Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), contend that the appointment of substitute trustees by the Orphans’ Court was unconstitutional per se. We do not agree. In Shelley, the Supreme Court held that a State court could not enforce a racially exclusive restrictive covenant which would have impeded a sale of property by one consenting party to another consenting party. The Court did not hold, as would have been analogous to the case before us, that a prospective purchaser of property can force the owner to sell to him when the latter wishes to adhere to a restrictive covenant which purports to bar such sales. On the contrary, the Supreme Court stressed the fact that “the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.” 334 U.S. at 13, 68 S.Ct. at 842. The distinguishing feature of the Shelley case was that the State courts had undertaken to enforce the restrictive terms of the agreements in a situation where “petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.” 334 U.S. at 19, 68 S.Ct. at 845. In the case before us, we find no consensual understanding among the parties; Stephen Girard did not provide for non-white male orphans and the trustees have refused to depart from the terms of the will. All matters involving decedents’ estates necessarily implicate the Orphans’ Court, whose responsibility it is" }, { "docid": "12883278", "title": "", "text": "residents of the North Addition. The appellants point out that the race issue was not discussed at any of the public meetings and that there was no evidence of racial prejudice on the part of any city official. If proof of a civil right violation depends on an open statement by an official of an intent to discriminate, the Fourteenth Amendment offers little solace to those seeking its protection. In our opinion it is enough for the complaining parties to show that the local officials are effectuating the discriminatory designs of private individuals. See e. g. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, holding unconstitutional the judicial enforcement of restrictive covenants contained in deeds, and Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830, holding unconstitutional an initiated amendment to the California constitution effectively permitting discriminatory practices in the housing market. The appellants argue that a finding of discriminatory intent is barred because the project was opposed on the grounds of overcrowding of the neighborhood, the local schools, and the recreational facilities and the overburdening of the local fire fighting capabilities. The testimony in this regard was vague and general. No school, fire, recreational, traffic or other official testified in support of the appellants’ claims. The racial prejudice alleged and estab lished by the plaintiffs must be met by something more than bald, conclusory assertions that the action was taken for other than discriminatory reasons. See Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 79 L.Ed. 1074, and Chambers v. Hendersonville City Board of Education, 4 Cir., 364 F.2d 189, 192. There is no escape from the fact that the area immediately surrounding Block 26 is classified R-4, high density residential. The plaintiffs want the same zone designation for Block 26 that the neighboring property has. Both the present and the former director for the Planning Commission testified that from a zoning standpoint there was no reason why Block 26 should not be classified R-4. In the circumstances presented; the claims of overcrowding of municipal facilities are unpersuasive. The appellants" }, { "docid": "23281340", "title": "", "text": "the right to determine the purchaser of the property when an owner desires to resell.” On the basis of this finding, the district court held that as a matter of law: “The ‘controlled occupancy pattern’ and resale quota system which Modern Community Developers, Inc., proposes to use in Deerfield through Progress Development Corporation is illegal both as to initial sales and resales. The power of a federal court cannot be used consistently with the Fifth Amendment and the Civil Rights Statutes to impose any percentage quota of Negro or Caucasians. Similarly, State power and authority cannot be constitutionally employed within the restrictions of the Fourteenth Amendment to control either the original or subsequent devolution of realty on a quota basis.” “A party who plans to put into effect a system of land tenure whereby ownership or occupation of land will be controlled on racial or other discriminatory basis cannot seek damages in a federal court for any interference which prevents such party from putting such plan into effect.” The court dismissed Counts I, II, and III, inter alia, because the rights claimed to be violated are not protected by the Fourteenth Amendment and the acts complained of are not in violation of the Civil Rights Act. In addition, it found that plaintiffs did not have “clean hands” in requesting injunctive relief. It is our considered judgment that the complaint on its face states a federal cause of action, Snowden v. Hughes, 1944, 321 U.S. 1, 7, 8, 10, 64 S.Ct. 397, 88 L.Ed. 497; Miles v. Arm strong, 7 Cir., 1953, 207 F.2d 284, 286, and that the resale policy of plaintiffs as found by the district court does not bar them from enforcing their rights under the relevant sections of the Civil Rights Act. The Supreme Court has held that judicial proceedings enforcing racially discriminatory restrictive covenants by injunction or damage actions constitute state or federal action in deprivation of the equal protection of the laws. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S. Ct. 836, 92 L.Ed. 1161; Hurd v. Hodge, 1948, 334 U.S. 24, 68 S.Ct." }, { "docid": "9589107", "title": "", "text": "programs of the Church in the Area, to provide and conduct a program and facilities for religious, moral, recreational and intellectual development, to operate schools for religious education, to provide homes for aged, sick, and other dependent people, and to do each and everything incidental to and in furtherance of the foregoing and permitted by the laws of the State of Illinois to be done by a corporation not for profit. While it is difficult to define the position of Bishop Kelly precisely, we are convinced that under the circumstances disclosed by this record, his relationship to the parties and to the property is such that there could be no final disposition of the proceedings without him, under the tests laid down in State of Washington v. United States, 9 Cir., 87 F.2d 421. See also Brown v. Christman, supra; Calcote v. Texas Pacific Co., 5 Cir., 157 F.2d 216, 167 A.L.R. 413. Hence he was an .indispensable party, and when he became a party defendant, the diversity of citizenship upon which the jurisdiction of the federal court depended failed. Appellants contend that jurisdiction was not based solely on diversity, but that in their amended complaint they also invoked R.S. §§ 1977, 1978, and 1979, 8 U.S.C.A. §§ 41 to 43, for the protection of their rights as Negroes to own and occupy land, citing Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441, which involved the question of restrictive covenants. Here we have no issues revolving upon restrictive covenants. \"It is not in point. Our examination of the amended complaint discloses insufficient allegations to support a charge of violation of the statutes relied upon, hence we find no merit in this contention. Affirmed. This suit was not filed as a class suit, and it originally sought relief somewhat similar to that sought by the complaint at bar, namely, an injunction to prevent sale of the property. It was subsequently amended to include as parties plaintiff all others similarly situated, and to permit consummation of the sale and reimbursement out of the proceeds insofar" }, { "docid": "9589103", "title": "", "text": "the amended complaint. The motion for temporary injunction was denied, and defendants’ motion to dismiss sustained; plaintiffs’ motion to vacate these orders and for leave to file an amended complaint was likewise denied, and from all of these orders the appeal was taken. Appellees’ assertion of absence of diversity of citizenship was based on the fact that the plaintiffs, limited to residents of certain named states, did not truly represent the entire class of persons interested in the property, and that the many Illinois residents who participated in the development of the project belong to the same class and are necessary and indispensable parties whose inclusion in the suit would destroy diversity. Decisions have been very liberal in permitting parties to make studied effort to name parties over whom the court will have jurisdiction, so long as it does not appear that the action is a collusive one to confer such jurisdiction upon a federal court which would otherwise not have it, and so long as the rights of other parties not represented will not be jeopardized by the adjudication. Of course all persons having conflicting claims to a particular fund are indispensable parties to its disposition. Brown v. Christman, 75 U.S.App.D.C. 203, 126 F.2d 625, 631. However, since it appears here that plaintiffs are seeking to save the property itself by preventing its sale rather than trying to obtain the proceeds of such sale, we think they may well argue that there is no such conflict of interest as would require the inclusion of all contributors to the fund with which the property was bought. Conceding, then, at least for purposes of this argument, that appellants were entitled under the Federal Rules and decisions to designate themselves as they did, making studied effort to omit all who would extinguish diversity if included, we are of the opinion that a much more serious question is disclosed by the pleadings. This question is whether Bishop Kelly was an indispensable party to the action. If so, of course, the court had no jurisdiction over the action without him. He was brought into" }, { "docid": "2954754", "title": "", "text": "here. To deny jurisdiction under section 1982 to plaintiffs would be to hold in effect that only those suffering from discrimination against black people who happen to be black come within the protection of the statute. This would surely be to read in 1982 a racist purpose. The jurisdictional basis of the statute so read would be antithetical to the ennobling objective of the statute and of the Thirteenth Amendment from which it was drawn. Further, such a reading would cast doubt on the constitutional validity of 1982. “[Discrimination may be so unjustifiable as to be violative of due process. * * * Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.” It is the conclusion of this Court that the plaintiffs are within the jurisdictional scope of section 1982 in their own right — even though they are not Negro persons and irrespective of whatever harm might have befallen Negro persons as a result of the alleged interruption of the Walker leasehold by defendants. There is, in addition, a second ground which supports jurisdiction for the plaintiffs. This ground is formed when Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), and its progeny are read with the decision of the Supreme Court in Jones. This second jurisdictional basis differs from the first in that the constitutional focus shifts to the question: what constitutional rights have Negro persons been deprived of as a result of defendant’s alleged acts ? In Barrows v. Jackson, supra, plaintiffs were parties to a racial covenant and sought damages against another party to the covenant who had conveyed his property to a Negro person. The State Supreme Court of California denied relief and the United States Supreme Court affirmed, citing Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947). In Shelley the Court had held that a private racial covenant could not be enforced against a Negro purchaser in state court because the part played by the state court in enforcement lent sufficient" }, { "docid": "9589104", "title": "", "text": "be jeopardized by the adjudication. Of course all persons having conflicting claims to a particular fund are indispensable parties to its disposition. Brown v. Christman, 75 U.S.App.D.C. 203, 126 F.2d 625, 631. However, since it appears here that plaintiffs are seeking to save the property itself by preventing its sale rather than trying to obtain the proceeds of such sale, we think they may well argue that there is no such conflict of interest as would require the inclusion of all contributors to the fund with which the property was bought. Conceding, then, at least for purposes of this argument, that appellants were entitled under the Federal Rules and decisions to designate themselves as they did, making studied effort to omit all who would extinguish diversity if included, we are of the opinion that a much more serious question is disclosed by the pleadings. This question is whether Bishop Kelly was an indispensable party to the action. If so, of course, the court had no jurisdiction over the action without him. He was brought into it by his own motion for leave to intervene. Ordinarily, an intervenor must accept the proceeding as he finds it at the time of his intervention, and his inclusion after jurisdiction has been established does not oust such jurisdiction. Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. However, this is not true where the intervenor is in fact an indispensable party without whom the action could not have proceeded. It seems clear that if his inclusion is essential to confer jurisdiction over the proceeding, then where jurisdiction depends upon diversity of citizenship, if his citizenship is the same as that of one of the adverse parties, his inclusion in the proceeding must prevent jurisdiction from vesting by extinguishing the requisite diversity. Here, Bishop Kelly is a resident of Missouri, as are the members of one group of plaintiffs. Hence, if he was in fact an indispensable party to the proceeding, the District Court rightly dismissed the action. In his answer, Bishop Kelly stated that his jurisdiction as" }, { "docid": "9589106", "title": "", "text": "Bishop of the St. Louis Area extended over all Negro members of the Methodist Church in seventeen states; that Kankakee Shores was organized under the Illinois laws for religious and social purposes as an instrumentality of the St. Louis Area, and that all gifts and donations made by the parties named or represented were made to him as such for use in his work and became subject to his control and jurisdiction in accordance with the customs and usages of the Church, and that he was fully empowered to merge all moneys so received and to use them as in his discretion seemed most advisable for promoting the religious and social work in the Area. It also appears from the Articles of Incorporation of Kankakee Shores which were filed as an exhibit to some of the pleadings, that the purpose fon which it was •organized was to constitute an instrumentality of the St. Louis Area of the Central Jurisdiction of the Methodist Church, and aS such instrumentality to promote and foster the spiritual and temporal programs of the Church in the Area, to provide and conduct a program and facilities for religious, moral, recreational and intellectual development, to operate schools for religious education, to provide homes for aged, sick, and other dependent people, and to do each and everything incidental to and in furtherance of the foregoing and permitted by the laws of the State of Illinois to be done by a corporation not for profit. While it is difficult to define the position of Bishop Kelly precisely, we are convinced that under the circumstances disclosed by this record, his relationship to the parties and to the property is such that there could be no final disposition of the proceedings without him, under the tests laid down in State of Washington v. United States, 9 Cir., 87 F.2d 421. See also Brown v. Christman, supra; Calcote v. Texas Pacific Co., 5 Cir., 157 F.2d 216, 167 A.L.R. 413. Hence he was an .indispensable party, and when he became a party defendant, the diversity of citizenship upon which the jurisdiction of" }, { "docid": "23618675", "title": "", "text": "uncontroverted record evidence supports it, we decline to credit their conclusory allegation as a sufficient basis for finding “state action” in these circumstances. See, e.g., Schucker v. Rockwood, 846 F.2d 1202, 1205 (9th Cir.) (conclusory allegations of conspiracy between court and litigants insufficient to establish “state action”), cert. denied, 488 U.S. 995, 109 S.Ct. 561, 102 L.Ed.2d 587 (1988). 2. Neutrality and the Use of Courts to Enforce Restrictive Covenants. The residents argue, in the alternative, that Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), supports the district court’s “state action” determination. In Shelley, the Supreme Court found “state action” where private parties resorted to the state courts to enforce a facially discriminatory restrictive covenant which provided, inter alia, that “no part of said property ... shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property ... against the occupancy as owners or tenants of any portion of said property for resident or another purpose by people of the Negro or Mongolian Race.” Id. at 4, 68 S.Ct. at 838. The residents insist that Shelley likewise encompasses judicial action to enforce a facially neutral covenant in a discriminatory manner. Two decades ago, this court propounded a clear limiting principle for applying the “state action” standard enunciated in Shelley. See Lavoie v. Bigwood, 457 F.2d 7, 11-12 (1st Cir.1972). Distinguishing Shelley from Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), Judge Coffin aptly noted: In [Griffin,] a deputy sheriff had ordered certain black patrons to leave a privately-owned amusement park, had arrested them when they refused to do so, and had brought a prosecution for criminal trespass. The Court recounted Maryland’s argument that it may ... constitutionally enforce an owner’s desire to exclude particular persons from his premises even if the owner’s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner’s ultimate purpose is immaterial to the State...." }, { "docid": "2012396", "title": "", "text": "which appellant complains have been appealed and none have been attacked collaterally before the filing of this suit. The suit here before the court seeks an injunction against the enforce ment of the judgment, asks that they be held to be null and void and for compensatory damages, including the amount of the judgments against her, and punitive damages. The trial court dismissed the complaint as amended as against Holt, the circuit judge, and Heller, the curator, for a failure to allege a claim on which relief could be granted; initially it dismissed the complaint against McCaughan, but .granted leave to amend; upon the filing of an amendment seeking to allege the facts against McCaughan that included those set out above, the court finally dismissed the complaint as to him also. This appeal complains of the orders of dismissal as to all of the parties. This being a suit between a New York plaintiff and Florida defendants the jurisdiction of the federal courts attaches by reason of the diversity of citizenship. To the extent that the plaintiff seeks to assert a constitutional right under the XIV Amendment, or a right of action under the Federal civil rights statutes, the complaint as against Holt and Heller does not, we think, assert any different cause of action than would be available to appellant as a non-resident of Florida suing on the basis of diversity of citizenship. State judges and state courts are, of course, repositories of state power, and state court action may in some cases amount to a deprivation by a state of rights guaranteed by the XIV Amendment, e. g., state court enforcement of racial covenants in real estate contracts, Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. This is not to say, however, that for the acts done by a state court that are alleged to have violated the plaintiff’s constitutional rights the remedy is a suit for damages under the civil rights statutes. The normal wray to correct errors in the trial or other disposition of a law suit is by appeal, not by" }, { "docid": "902225", "title": "", "text": "discrimination as to violate the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Cf. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). Moreover, appellants argue, even if the Recorder’s actions are constitutional, they entail the making and publication of a notice or statement of a racial preference with respect to the sale of a dwelling and, hence, are unlawful under Title VIII of the Fair Housing Act of 1968. See note 1 supra. Finally, appellants point to local statutes which permit the Recorder to accept only those documents “affecting the title or ownership of real estate,” 45 D.C. Code § 701(a) (1) (1967), and which forbid him from recording instruments “not * * * executed * * * agreeably to law.” 45 D.C.Code § 503 (1967). Since restrictive covenants have not affected “the title or ownership of real estate” since Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and have not been “agreeabl[e] to law” since passage of the Fair Housing Act of 1968, appellants argue, the Recorder exceeds his statutory mandate when he accepts these documents for filing. In response, appellees decline to meet appellants’ constitutional argument. Instead, they contend that exclusion of restrictive covenants is not required by the Fair Housing Act, that such an exclusionary rule would be burdensome to administer and beyond the Recorder’s statutory authority, and that in any case appellants suffer no harm because of the void covenants. For the reasons stated below, we find each of appellees’ arguments unconvincing. Although they can be attacked separately on their respective merits, it is worth observing at the outset that in the aggregate they amount to no more than the sort of lame excuses for denial of racial justice which the Supreme Court rejected long ago. See, e. g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Barrows" }, { "docid": "16662697", "title": "", "text": "appointing a guardian for Grant upon the application of a third party. He is therefore not a proper defendant. Our holding does not necessarily leave plaintiff without a federal injunctive or declaratory remedy. While we need make no definitive pronouncement upon this issue, Grant probably could have filed an action for declaratory judgment against her mother or ex-husband in these circumstances. The constitutionality of state law has been litigated in private actions in the past. Indeed, such actions have a distinguished history. In Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), for example, the Supreme Court held in an action between two private parties, that the enforcement of racially restrictive covenants deprived the plaintiffs of their constitutional rights. See also Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917) (declaring a city ordinance that denied black people the right to live in predominantly white neighborhoods unconstitutional in the context of a suit between two private parties). While both Shelley and Buchanan are cases which arose on certiorari to the state courts, and Buchanan even predated the enactment of the declaratory judgment act, under today’s law both of these cases in all likelihood could have been successfully maintained as declaratory judgment actions in federal court under federal question jurisdiction. While a private party may not be a “state actor” for purposes of § 1983, the existence of the state statute and necessary involvement of a state judge could well provide the “state action” necessary to present a constitutional question suitable for decision in federal court. See also, Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The order of the district court denying attorneys’ fees is AFFIRMED, and the cross-appeal on the merits of the judgment is DISMISSED AS MOOT. . We also express no opinion as to other issues that might arise in such litigation, including issues of abstention." }, { "docid": "2954755", "title": "", "text": "leasehold by defendants. There is, in addition, a second ground which supports jurisdiction for the plaintiffs. This ground is formed when Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), and its progeny are read with the decision of the Supreme Court in Jones. This second jurisdictional basis differs from the first in that the constitutional focus shifts to the question: what constitutional rights have Negro persons been deprived of as a result of defendant’s alleged acts ? In Barrows v. Jackson, supra, plaintiffs were parties to a racial covenant and sought damages against another party to the covenant who had conveyed his property to a Negro person. The State Supreme Court of California denied relief and the United States Supreme Court affirmed, citing Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947). In Shelley the Court had held that a private racial covenant could not be enforced against a Negro purchaser in state court because the part played by the state court in enforcement lent sufficient state action to the discrimination to render it violative of the equal protection clause of the Fourteenth Amendment. While in Shelley the Negroes whose constitutional rights were endangered were parties in the case, in Barrows the Negroes to be protected were neither parties nor even identified. The concern of the Barrows Court was that the financial penalization of whites breaching restrictive covenants to sell to non-eaucasians might produce, to borrow a contemporary term, a “chilling effect” on the attitudes of subsequent white vendors. If a state court awards damages for breach of a restrictive covenant, a prospective seller of restricted land will either refuse to sell to non-Caucasians or else will require non-Caucasians to pay a higher price to meet the damages which the seller may incur. Solely because of their race, non-Caucasians will be unable to purchase, own, and enjoy property on the same terms as Caucasians. Denial of this right by state action deprives such non-Caucasians, unidentified but identifiable, of equal protection of the laws in violation of the Fourteenth Amendment. Noting the" }, { "docid": "9589108", "title": "", "text": "the federal court depended failed. Appellants contend that jurisdiction was not based solely on diversity, but that in their amended complaint they also invoked R.S. §§ 1977, 1978, and 1979, 8 U.S.C.A. §§ 41 to 43, for the protection of their rights as Negroes to own and occupy land, citing Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441, which involved the question of restrictive covenants. Here we have no issues revolving upon restrictive covenants. \"It is not in point. Our examination of the amended complaint discloses insufficient allegations to support a charge of violation of the statutes relied upon, hence we find no merit in this contention. Affirmed. This suit was not filed as a class suit, and it originally sought relief somewhat similar to that sought by the complaint at bar, namely, an injunction to prevent sale of the property. It was subsequently amended to include as parties plaintiff all others similarly situated, and to permit consummation of the sale and reimbursement out of the proceeds insofar as that was possible to the various contributors and lenders who appeared in person or by representative in the shit. Judgment to that effect was rendered May 24, 1948, by the Circuit Court of Cook County, Illinois, about two weeks after filing of the suit at bar on May 7, 1948." } ]

[ { "docid": "22443518", "title": "", "text": "conditions of his supervised release. The court accepted Cotroneo’s admission to violating his supervised release as alleged in the government’s initial petition. The court further found that Cotroneo had violated his supervised release as alleged in the government’s supplemental petition. The court revoked Cotroneo’s two concurrent terms of supervised release that he was serving for credit card fraud and escape, and imposed sentences of twenty-four months of imprisonment on each of those convictions, to be served consecutively. II. Cotroneo argues that the District Court erred in sentencing him to consecutive, rather than concurrent, terms of imprisonment upon revocation of his supervised release. We reject this argument. The decision to impose a consecutive or concurrent sentence upon revocation of supervised release is committed to the sound discretion of the district court, see 18 U.S.C. § 3584(a) (1994); cf. United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989) (noting discretion of court in sentencing defendant to concurrent or consecutive sentences upon conviction), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990). When imposing multiple sentences under 18 U.S.C. § 3584 (1994), the district court is directed to refer to 18 U.S.C. § 3553(a) (1994), which enumerates the factors that shall be considered in imposing sentences under § 3584, including the nature, circumstances, and seriousness of the offense; the history of the defendant; and the need for adequate deterrence. At the time of the revocation hearing, Co-troneo was serving two concurrent terms of supervised release: one for a credit card fraud conviction, a Class C Felony, see 18 U.S.C. §§ 1029(a)(2), 3559(a)(3) (1994); and one for an escape conviction, a Class D Felony, see 18 U.S.C. §§ 751(a), 3559(a)(4) (1994). Under 18 U.S.C. § 3583(e)(3) (1994) the court may, upon finding that the defendant violated a condition of supervised release, revoke the term of supervised release and require the defendant to serve all or part of the supervised release in prison. Section 3583(e)(3) provides that “a defendant whose term is revoked ... may not be required to serve ... more than 2 years in prison if such offense is" } ]

[ { "docid": "22700806", "title": "", "text": "that the defendant would have received a lighter sentence but for the error. United States v. Pirani, 406 F.3d 543, 552 (8th Cir.) (en banc), cert. denied, 546 U.S. 909, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). Here, the District Court considered the three-to-nine-month revocation sentence recommended under the Guidelines, but elected to impose consecutive fourteen-month terms of imprisonment. Each sentence was within the statutory limits of 18 U.S.C. § 3583(e)(3), and the court had discretionary authority under 18 U.S.C. § 3584 to order that the sentences run consecutively. See United States v. Baker, 491 F.3d 421, 424 (8th Cir.2007) (affirming revocation sentence of consecutive twenty-four-month terms of imprisonment where defendant originally pleaded guilty to one Class C felony and one Class D felony); United States v. Cotroneo, 89 F.3d 510, 512 (8th Cir.) (stating that a decision to impose a consecutive or concurrent sentence upon revocation of supervised release is committed to a district court’s sound discretion), cert. denied, 519 U.S. 1018, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996). The District Court based its sentencing determination on factual findings that were not clearly erroneous, adequately explained the reasons for the sentence imposed, and considered alternatives to imprisonment. As noted above, the court found by a preponderance of the evidence, see 18 U.S.C. § 3583(e)(3), that Miller refused to cooperate with the IRS, failed to pay his outstanding tax debt, filed incomplete and inaccurate personal tax returns for the 2000 through 2004 tax years, and failed to file a personal tax return for the 2005 tax year. Each of these findings was amply supported in the record. Explaining its reasons for imposing the ultimate sentence, the court noted that it was “disturbing” that despite the “considerable leniency” extended to Miller at his original sentencing, Miller continued to behave as if he were “above the law.” Tr. of June 18, 2007, Sent. Hr’g at 58-59. The court stated that it had “tried everything possible” to get Miller to “comply with the judgments of this Court,” but that Miller continued his efforts “to frustrate the [IRS] and this Court and the Court" }, { "docid": "21371099", "title": "", "text": "of supervised release. However, in December 2003, Walker robbed a fast food restaurant. In state court, Walker pled guilty to robbery charges and was sentenced to 120 months of imprisonment. After his release from the Arkansas Department of Corrections, Walker was transferred to the custody of the United States Marshals. In May 2007, following a revocation hearing on his 1996 supervised release sentence, the district court found Walker had violated the conditions of his supervised release and then sentenced Walker to 24 months of imprisonment and 12 months of supervised release. Arguing the district court is not authorized to sentence him to a post-revocation term of additional supervised release, Walker appeals. I. DISCUSSION We review the legality of Walker’s revocation sentence de novo, a matter that turns on the interpretation of 18 U.S.C. § 3583. See United States v. Palmer, 380 F.3d 395, 396 (8th Cir.2004) (en banc) (citations omitted). If a defendant violates the conditions of his supervised release, a district court, under § 3583, is permitted “to impose both imprisonment and a new term of supervised release if the new term does ‘not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.’ ” Id. at 397 (citing 18 U.S.C. § 3583(h)) (emphasis in original). The district court “may require imprisonment for ‘all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release.’ ” Id. (citing 18 U.S.C. § 3583(e)(3)) (emphasis in original). Upon revocation, “[i]f a sentence is imposed ‘within the bounds of 18 U.S.C. § 3583(e),’ we will not disturb it absent an abuse of discretion.” United States v. Holt, 130 Fed.Appx. 837, 838-39 (8th Cir.2005) (citing United States v. Holmes, 283 F.3d 966, 968 (8th Cir.2002)). Walker does not dispute his sentence of 24 months of imprisonment, but contends the district court erred in imposing an additional 12-month term of supervised release. We find the district court committed no" }, { "docid": "22436172", "title": "", "text": "hearing that he had reentered the country in violation of the terms of his supervised release. The District Court then granted the petition and imposed a fifteen-month sentence to run consecutively to the thirty-month sentence for the instant reentry offense. See U.S.S.G. § 7B1.3(f). On appeal, Mr. Rodriguez-Quintanilla argues the District Court abused its discretion in imposing a consecutive sentence and that the consecutive sentence is unreasonable after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). II. DISCUSSION Under 18 U.S.C. § 3584(a), a district court has the discretion to impose consecutive or concurrent sentences. United States v. Russell, 905 F.2d 1450, 1457 (10th Cir.1990). The district court’s discretion is guided by the factors delineated by 18 U.S.C. § 3553(a), see id. (citing 18 U.S.C. § 3584(b)), which include the characteristics of the offense and the defendant, the need for deterrence and the protection of the public, and, in cases involving a violation of supervised release, “the applicable guidelines or policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post-Booker Guidelines, policy statements regarding supervised release are advisory in nature. United States v. Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir.2005). The applicable policy statement contained in § 7B1.3(f) recommends that: Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. Therefore, the District Court’s order requiring Mr. Rodriguez’s fifteen-month sentence to run consecutively with the thirty-month sentence is in accordance with the advisory policy statement contained in § 7B1.3(f). In such a case, the defendant bears the burden to demonstrate that the District Court should exercise its discretion to impose concurrent sentences in spite of that statement. United States v. Urcino-Sotello, 269 F.3d 1195, 1197 (10th Cir.2001). This Court, prior to Booker, has applied two different standards of review to" }, { "docid": "22160709", "title": "", "text": "All parties agreed that Nelson’s advisory guidelines range was four to ten months of imprisonment, with a maximum sentence of thirty-six months of imprisonment. See USSG § 7B1.4, p.s. (advisory sentencing table); 18 U.S.C. §§ 3583(e)(3), 3559(a)(2) (setting maximum sentence for supervised release violations at three years of imprisonment for Class B felonies). The district court considered Nelson’s numerous letters of support, his attorney’s request that the court consider continuing the hearing so that Nelson could receive treatment, and Nelson’s own eloquent statement. Nonetheless, the court determined that, due primarily to Nelson’s lengthy history of drug abuse as well as the relatively lenient sentence he originally received, a sentence of twenty-four months of imprisonment, with no supervised release to follow, was appropriate. Nelson appeals. ANALYSIS Chapter 7 of the United States Sentencing Guidelines sets forth advisory policy statements related to the revocation of supervised release. See generally USSG § 7B. This section of the guidelines includes a suggested range of punishment, which varies based on the type of offense and criminal history of the offender. USSG § 7B1.4. This sentencing range is advisory. United States v. Edwards, 400 F.3d 591, 592-93 (8th Cir.2005) (per curiam). In fashioning an appropriate revocation sentence, the district court is to consider the sentencing range, but also “must take into account certain of the factors listed in 18 U.S.C. § 3553(a), including the statutory goals of deterrence, incapacitation, and rehabilitation; the pertinent circumstances of the individual case; applicable policy statements; sentencing uniformity; and restitution.” United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005) (citations omitted). We review the sentence imposed to determine whether it is unreasonable in relation to the above-stated factors. United States v. Tyson, 413 F.3d 824, 825 (8th Cir.2005) (per curiam). We are satisfied that the sentence imposed here is not unreasonable. Nelson complains that he would have been better served through an inpatient treatment facility than through incarceration. The district court, which benefitted from sentencing Nelson originally, determined that Nelson’s long history of drug use made it unlikely that he would respond to inpatient treatment. The court thus considered whether" }, { "docid": "9839878", "title": "", "text": "... within the range ... in subsection (a)(4)” language in § 3553(b) refers only to guidelines, and makes no mention of those policy statements which the Sentencing Commission itself considers non-binding. For these reasons, we conclude that the district court. did not commit any error, much less plain error, by treating § 7B1.4(a) as advisory and sentencing Brown above the suggested range. We also conclude that the district court did not abuse its discretion by sentencing Brown to 24 months imprisonment. See United States v. Grimes, 54 F.3d 489, 492 (8th Cir.1995) (“A sentence imposed within the limits of § 3583(e) will not be disturbed ‘absent an abuse of discretion.’ ”). At the revocation hearing, the court discussed the seriousness of Brown’s criminal history and the frequency of his violations of supervised release. The court also inquired of Brown whether he would be helped by additional treatment, and Brown responded that he had already been through the intensive substance abuse program offered by the Bureau of Prisons and did not need further treatment. These discussions demonstrate the court’s consideration of the relevant statutory factors, and show that the sentence- imposed was a carefully considered exercise of discretion. See 18 U.S.C. § 3553(a)(1) and (a)(2)(B-D) (court- shall consider defendant’s history and characteristics, need to deter defendant from criminal, conduct, need to protect public from further crimes by defendant, and need to provide defendant with medical care or correctional treatment) (made applicable to supervised release by 18.U.S.C. § 3583(e)); Grimes, 54 F.3d at 492-93 (no abuse of discretion where district court, considered number and nature of defendant’s violations of supervised release in selecting revocation sentence). We further note that the imposed 24-month term of imprisonment, plus the 13 months Brown has already served for violating the terms of his supervised release on his first revocation, a total of' 37 months, does not exceed the 60-month maximum authorized term' of imprisonment for revocation of supervised release pursuant to 18 U.S.C. § 3583(e)(3) for a Class A underlying felony offense, see United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir.1999), nor does" }, { "docid": "17867272", "title": "", "text": "(7th Cir.1993), Hill holds that U.S.S.G. § 7B1.3(f), p.s. (requiring a consecutive sentence upon revocation of supervised release) is not binding on the district court because it is a policy statement that is not interpretative of a specific guideline. Hill, 48 F.3d at 231. The court reasoned: The policy statements in Chapter 7, however, are neither guidelines nor interpretations of guidelines. They tell the district judge how to exercise his discretion in the area left open by the guidelines and the interpretive commentary on the guidelines. Id. Hill brought the Seventh Circuit in line with every other circuit that had considered whether Chapter 7 was binding or advisory. See Hill, 48 F.3d at 231. Several circuits have specifically held that the revocation range set forth in § 7B1.4(a) is advisory only. See Giddings, 37 F.3d at 1093-94; Davis, 53 F.3d at 642 (“Chapter 7’s policy statements are now and have always been non-binding, advisory guides to district courts in supervised release revocation proceedings.”). The implication of Hill is as follows: if the § 7B1.4 revocation range is not binding on the district court in either 1994 or 1995, the amendment to § 3583(g) might produce an increased punishment for McGee. However, there is no increased punishment. The 1994 statute provided a minimum sentence of 12 months and a maximum of 24 months (the minimum provided by § 3583(g) and the maximum by § 3583(e)(3)). The 1995 statute provides only a maximum of 24 months. Thus the amendments actually benefit McGee, because he is not subject to a statutory minimum. However, the district court did not analyze McGee’s case in this way. The court applied the revocation range of § 7B1.4(a) as if it were binding. Although this might have been error, neither party raises the issue. There is no evidence that the district court felt constrained by the revocation range and would have imposed a different sentence had they not been binding. We conclude that the district court did not commit plain error in sentencing McGee. (c) Even under McGee’s construction there is no ex post facto violation Even accepting" }, { "docid": "22911760", "title": "", "text": "and Johnson’s criminal-history category as level II. Based on these factors, Johnson’s advisory Guidelines range was calculated to be fifteen to twenty-one months of imprisonment. The report also noted that; pursuant to 18 U.S.C. § 3583(e)(3), Johnson could be sentenced to no more than three years in prison upon revocation of supervised release because his original federal offense of conviction was a Class B felony. See 18 U.S.C. § 3583(e)(3). Additionally, the report advised that, pursuant to Application Note 4 of the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 7B1.4 (2009), because Johnson’s original sentence was the result of a downward departure, an upward departure for the revocation sentence may be warranted. It also noted that, pursuant to U.S.S.G. § 7B1.3(f), any sentence imposed upon revocation of supervised release should run consecutively to any other sentence of imprisonment. In light of the relevant policy statements and the nature of Johnson’s violations, the report recommended that Johnson be sentenced to thirty-six months of imprisonment, the statutory maximum, and that the sentence run consecutively to his state sentence. At his hearing before the district court, Johnson did not challenge any of the facts in the SRVR and admitted to violating the conditions of his supervised release. When the court asked whether Johnson wished to make a statement or present any information, Johnson, through counsel, requested a sentence within the fifteen to twenty-one months Guidelines range, to run concurrently with his state sentence. Johnson argued that a concurrent, Guidelines-range sentence was appropriate because of his low criminal-history category and the efforts he made on supervised release to better himself. Johnson also noted that his underlying federal conviction did not involve firearms or violence, but was a fraud-related crime for which he received a four-level reduction for playing a minimal role in the offense. In light of these considerations, he argued that additional punishment beyond his twelve-year sentence for his state offenses was unnecessary. Finally, Johnson noted that he had significant community and family support, and presented two of his cousins and his grandmother to speak on his behalf. When Johnson’s counsel described the circumstances" }, { "docid": "23697231", "title": "", "text": "Cir.2000) (in ruling on suspension of defendant’s supervised release, holding “[w]hether the district court had the authority to impose the controverted tolling condition in the exercise of its discretion is a legal question subject to de novo review”). Pardue makes two arguments regarding the sentence imposed upon revocation of his supervised release. First, Pardue argues the district court erred in sentencing him to twenty-four months in prison. Second, Pardue argues he should receive credit for time already served. Because Pardue did not present the first argument to the district court, we are limited to a plain error review. United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (citing United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc)). Pardue bases this first argument on his assertion that the state convictions should be dismissed due to the IADA violations. Because we have concluded the IADA does not apply to Pardue’s situation, any argument the district court erred in revoking Pardue’s supervised release based on the state convictions is without merit. The district court properly imposed its revocation sentence based on the commission of a felony, for which the Sentencing Guidelines permit a twenty-four month revocation sentence. 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4. Further, the district court correctly ordered the term of imprisonment to run consecutively to the state sentence. U.S.S.G. § 7B1.3(f). Second, Pardue claims the district court should have given him credit for time served under 18 U.S.C. § 3585(b). Indeed, section 3585(b) calls for a defendant to be given such credit. However, this determination, as the district court correctly observed, is properly left to the Bureau of Prisons. United States v. Iversen, 90 F.3d 1340, 1344-45 (8th Cir.1996) (noting the district court did not have authority under 18 U.S.C. § 3585(b) to credit the defendant for time spent in home detention during a previous sentence, and such a claim should first be presented to the Bureau of Prisons). A district court cannot apply section 3585(b) when sentencing, because computing “the credit must occur after the defendant begins his sentence.” United States v. Wilson, 503 U.S." }, { "docid": "22195189", "title": "", "text": "McKEOWN, Circuit Judge:. Debbie George appeals a 23-month sentence imposed upon revocation of her supervised release. George contends that the district court erred by failing to sentence her within the 7-to-13 month range outlined in the policy statements set forth in Chapter 7 of the Sentencing Guidelines. We hold that, in determining an appropriate sentence upon revocation of supervised release, a district court must consider but is not bound by the Chapter 7 policy statements. We therefore affirm George’s sentence. I. Background In July 1993, George, a convicted felon, pleaded guilty to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). She received a sentence of 70 months, followed by a three-year term of supervised release with standard and special conditions. In October 1998, the district court found George in violation of various conditions of her supervised release. The district court revoked George’s supervised release and sentenced her to 23 months imprisonment. Prior to sentencing, George’s counsel argued that George should receive a term within the 7-to-13 month range stated in U.S.S.G. § 7B1.4, p.s. The district court rejected the argument, concluding that the ranges in section 7B1.4 are not binding. II.Standard of Review We review de novo the district court’s application of the Sentencing Guidelines. United States v. Nieblas, 115 F.3d 703, 705 (9th Cir.1997). We review for abuse of discretion the district court’s consideration of non-binding policy statements. See United States v. Contreras, 63 F.3d 852, 855-56 (9th Cir.1995). III.Revocation of Supervised Release Upon finding that a defendant has violated a condition of supervised release, the district court may “revoke a term of supervised release” and “require the defendant to serve in prison all or part of the term of supervised release authorized by statute,” not to exceed a certain number of years, depending on the nature of the original offense. 18 U.S.C. § 3583(e)(3). In doing so, the court must consider the factors set forth in certain subsections of 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). The issue in this case concerns the effect of the 1994 amendments to subsection (4) of section" }, { "docid": "11703071", "title": "", "text": "Moss, we affirm the court’s judgment that Martin violated the standard condition prohibiting him from committing another state or local crime while on supervised release. 2. The Guidelines classify Martin’s assault as a Grade C violation of supervised release. See U.S.S.G. § 7B1.1(a)(3), p.s. When initially sentenced, Martin was in criminal history category III, so his Guidelines revocation sentencing range is five to eleven months in prison. See § 7B1.4(a), p.s. Martin argues that the district court erred in imposing a greater eighteen-month revocation sentence. He concedes, as he must, that the policy statement is non-binding. See United States v. Hensley, 36 F.3d 39,41-42 (8th Cir.1994). Because the policy statement is non-binding, “a revocation sentence exceeding the suggested range is just that, a sentence. It is not an ‘upward departure’ because there is no binding guideline from which to depart.” United States v. Shaw, 180 F.3d 920, 922 (8th Cir.1999). As the sentence is not an upward departure, it is not subject to the de novo review recently mandated by the Protect Act. See 18 U.S.C. § 3742(e)(3). Rather, we review for abuse of discretion the district court’s decision to sentence Martin to a longer term than that suggested by § 7B1.4. See United States v. Kaniss, 150 F.3d 967, 968 (8th Cir.1998). Martin’s initial offense was a class C felony, so the eighteen-month revocation sentence is within the statutory maximum. See 18 U.S.C. § 3583(e)(3). In imposing a revocation sentence, the district court must consider a number of statutory sentencing factors, including “any pertinent policy statement.” 18 U.S.C. §§ 3553(a)(5), 3583(e). Here, noting that the guidelines suggest a range of five to eleven months, the district court explained: I further find and take into consideration the relevant conduct of your failure to obey the lawful command of the police officers who arrived to investigate the 911 call by refusing to show your hands to the officer, refusing to put your hands up, refusing to approach the officers as you were requested, refusing to stop as you were requested and refusing to come out of your house as you were" }, { "docid": "22800364", "title": "", "text": "contends that the district court erred by sentencing him to eighteen months of incarceration because the court failed to consider the applicable policy statements set forth in the Sentencing Guidelines and, in addition, imposed a sentence that was plainly unreasonable. We will affirm a district court’s sentence of imprisonment upon revocation of supervised i-elease if it shows consideration of the relevant statutory factors and is not plainly unreasonable. See United States v. Webb, 30 F.3d 687, 689 (6th Cir.1994). The policy statements in Chapter Seven of the Sentencing Guidelines recommend a sentencing range of 5-11 months for an individual with McClellan’s violation category and criminal history. See U.S.S.G. § 7B1.4, p.s. We have consistently held that the policy statements contained in Chapter Seven of the Sentencing Guidelines are merely advisory and that a court need only consider them prior to imposing sentence for revocation of supervised release. See United States v. West, 59 F.3d 32, 33 (6th Cir.1995). In this case, the district court did not specifically refer to the Chapter Seven policy statements; however, the court noted that it had reviewed the violation report prepared by the probation office, which contained the recommended sentencing range. By reviewing the supervised release violation report, the court is presumed to have considered the recommended sentencing range set forth in the policy statements. See United States v. Davis, 53 F.3d 638, 642 (4th Cir.1995); see also United States v. Washington, 147 F.3d 490, 491-92 (6th Cm.), cert. denied, — U.S. -, 119 S.Ct. 386, 142 L.Ed.2d 319 (1998). Thus, we can infer that the district court considered the policy statements, although express reference to the recommended sentencing range is certainly preferable. In addition, the district court’s sentence must reflect consideration of the factors listed in 18 U.S.C. § 3553. See 18 U.S.C. § 3583(e) ; Washington, 147 F.3d at 491. Title 18 U.S.C. § 3583(e)(3) further provides a statutory maximum sentence of two years upon revocation of supervised release when the original offense was, as in this case, a Class C felony. Here, although McClellan’s sentence did not exceed the statutory maximum, the" }, { "docid": "11105055", "title": "", "text": "PER CURIAM. In May 1992, Jimmy Calvin Caves completed a federal prison term and commenced a five-year term of supervised release imposed by the District of Minnesota. In December 1994, Caves pleaded guilty to distributing marijuana in the Eastern District of Oklahoma and was sentenced to 108 months in prison. The government then commenced this supervised release revocation proceeding in the District of Minnesota. At the revocation hearing, Caves admitted that his Oklahoma drug conviction violated a supervised release condition. The district court revoked Caves’s supervised release and sentenced him to twelve months in prison, to be served consecutively to his Oklahoma sentence. Caves appeals that sentence. Chapter 7 of the Sentencing Guidelines sets forth policy statements for dealing with violations of supervised release. The policy statements provide that Caves’s drug offense was a Grade A violation, U.S.S.G. § 7Bl.l(a)(l)(ii), for which the court “shall revoke” supervised release, § 7B1.3(a)(l). In this case, Caves and the government agreed on a revocation sentencing range of twelve to eighteen months, the minimum prescribed by § 7B1.4(a). Regarding the issue of consecutive sentencing, § 7B1.3(f) provides: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence ... being served resulted from the conduct that is the basis of the revocation .... Unlike other Guidelines policy statements, Chapter 7 policy statements are advisory, rather than binding, upon the district court. See United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993). In this case, Caves urged the district court to exercise its sentencing discretion and impose a concurrent revocation sentence because Caves’s original offense conduct and his violation of supervised release had already resulted in an increased prison term being imposed by the Eastern District of Oklahoma. After hearing argu ment on this issue, the district court imposed the twelve month consecutive sentence without further explanation. On appeal, Caves argues that we must reverse because the district court (i) did not state on the record that it had considered the" }, { "docid": "11105056", "title": "", "text": "the issue of consecutive sentencing, § 7B1.3(f) provides: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence ... being served resulted from the conduct that is the basis of the revocation .... Unlike other Guidelines policy statements, Chapter 7 policy statements are advisory, rather than binding, upon the district court. See United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993). In this case, Caves urged the district court to exercise its sentencing discretion and impose a concurrent revocation sentence because Caves’s original offense conduct and his violation of supervised release had already resulted in an increased prison term being imposed by the Eastern District of Oklahoma. After hearing argu ment on this issue, the district court imposed the twelve month consecutive sentence without further explanation. On appeal, Caves argues that we must reverse because the district court (i) did not state on the record that it had considered the sentencing factors specified in 18 U.S.C. § 3583(e), and (ii) did not explain the reasons for the sentence it imposed. We disagree. The court imposed the minimum sentence in the range to which the parties had agreed. It followed an explicit policy-statement in making that sentence consecutive. Caves cites no case requiring a sentencing court to explain a revocation sentence that is consistent with all applicable policy statements, as well as an agreement of the parties. We decline Caves’s invitation to assume that the district court did not consider the basic statutory sentencing factors enumerated in 18 U.S.C. § 3583(e). We also reject as without merit his contention that the district court abused its discretion by imposing a twelve-month consecutive sentence for this very serious violation of the conditions of Caves’s supervised release. The judgment of the district court is affirmed. . The HONORABLE MICHAEL J. DAVIS, United States District Judge for the District of Minnesota." }, { "docid": "21512388", "title": "", "text": "court noted Johnson’s repeated violations of the terms of his supervised release as well as multiple occasions on which Johnson assaulted law enforcement officers. Accordingly, we are satisfied that the district court properly considered Johnson’s history, characteristics, and conduct, and affirm the procedural sufficiency of Johnson’s sentence. A district court’s discretion to impose a prison sentence upon revocation of supervised release is limited by 18 U.S.C. § 3583(e)(3) and we will not disturb a sentence imposed under the statute absent an abuse of discretion. Perkins, 526 F.3d at 1110. The district court correctly found, and the parties each agreed at the revocation hearing, that the statutory maximum for Johnson’s original offense of wire fraud was three years. See § 3583(b)(2), (e)(3). A twenty-four month revocation sentence therefore does not exceed statutory limitations. Here, the district court voiced well-founded concerns regarding Johnson’s multiple violation reports and violence against law enforcement officers. In light of the goals of criminal sentencing and supervised release, as well as the circumstances underlying the case, we find the sentence imposed was not substantively unreasonable. Johnson further argues that the district court abused its discretion when it ordered the twenty-four month sentence to run consecutively to any state sentence Johnson may receive. Guideline § 7B1.3(f) provides that “[a]ny term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving.” It is within the discretion of a district court to order that a federal sentence run consecutively to a yet-to-be-imposed state sentence. Setser v. United States, — U.S. -, 132 S.Ct. 1463, 1468, 182 L.Ed.2d 455 (2012); United States v. Hall, No. 15-1405, 825 F.3d 373, 375, 2016 WL 3144681, at *2 (8th Cir. June 6, 2016); United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001). Thus, the district court’s order that Johnson serve the federal revocation sentence consecutive to a state sentence that had not yet been imposed constitutes no abuse of discretion. Johnson also argues on appeal that the district court erred in failing to recuse" }, { "docid": "22138941", "title": "", "text": "sentence, and counsel for Franklin asked the district court to consider sentencing Franklin within the range of 8-14 months of imprisonment recommended under the Chapter 7 policy statements in the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual § 7B1.4, p.s. (2003); United States v. White Face, 383 F.3d 733, 738 (8th Cir.2004) (noting that the Chapter 7 policy statements in the Guidelines are advisory, rather than binding on the district court). After hearing arguments from counsel, the district court revoked Franklin’s supervised release and sentenced him to 24 months in prison without further explanation. Franklin first argues that the district court abused its discretion by failing to consider certain sentencing factors set forth in 18 U.S.C. § 3553(a), including the Chapter 7 policy statements in the Guidelines. After carefully reviewing the record, we conclude that the district court acted within its discretion. Although the district court is required to consider certain factors set forth in § 3553(a) in a supervised-release-revocation sentencing, “there is no requirement that the district court make specific findings relating to each of the factors considered.” United States v. Graves, 914 F.2d 159, 160 (8th Cir.1990); see White Face, 383 F.3d at 740 (noting that “[a] district court need not mechanically list every § 3553(a) consideration when sentencing a defendant upon revocation of supervised release”). “All that is required is evidence that the court has considered the relevant matters .... ” White Face, 383 F.3d at 740. Evidence that the district court was aware of the relevant § 3553(a) factors required to be considered is sufficient. See id. (holding, after careful review of the record, that the district court adequately considered the relevant § 3553(a) factors because it showed awareness of each defendant’s violation of specific conditions of supervised release, criminal history category, suggested Chapter 7 range, and the statutory maximum). In this case, evidence that the district court was aware of the relevant § 3553(a) factors required to be considered can be inferred from the record. The revocation hearing transcript shows that the district court was aware of Franklin’s numerous and repeated violations of the conditions" }, { "docid": "21371100", "title": "", "text": "term of supervised release if the new term does ‘not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.’ ” Id. at 397 (citing 18 U.S.C. § 3583(h)) (emphasis in original). The district court “may require imprisonment for ‘all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release.’ ” Id. (citing 18 U.S.C. § 3583(e)(3)) (emphasis in original). Upon revocation, “[i]f a sentence is imposed ‘within the bounds of 18 U.S.C. § 3583(e),’ we will not disturb it absent an abuse of discretion.” United States v. Holt, 130 Fed.Appx. 837, 838-39 (8th Cir.2005) (citing United States v. Holmes, 283 F.3d 966, 968 (8th Cir.2002)). Walker does not dispute his sentence of 24 months of imprisonment, but contends the district court erred in imposing an additional 12-month term of supervised release. We find the district court committed no error. Walker’s sentence of 24 months of imprisonment plus a term of 12 months of supervised release does not exceed the term of supervised release authorized by 18 U.S.C. § 3583. Walker’s underlying offenses were class C and D felonies, and a term of supervised release of up to three years is authorized by § 3583(b)(2). Therefore, when the district court revoked Walker’s previous term of supervised release, the court did not abuse its discretion by imposing a three year sentence composed of 24 months of imprisonment and 12 months of supervised release. Under § 3583, Walker may be sentenced to a term of imprisonment and a further term of supervised release which, in the aggregate, do “not exceed the term of supervised release authorized by the statute for the offense that resulted in the original term of supervised release. Palmer, 380 F.3d at 397. Walker’s revocation sentence clearly does not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, that is, three" }, { "docid": "23053632", "title": "", "text": "substantively unreasonable. But these mitigating factors, when weighed in light of the totality of the circumstances, are insufficient to rebut the presumption that his within Guidelines sentence was substantively reasonable. See United States v. Saffore, 216 Fed.Appx. 531, 536 (6th Cir.2007) (finding that a defendant’s personal quality as a good father does not render a within Guidelines sentence substantively unreasonable given the defendant’s criminal history). The district court did not abuse its discretion because its choice of prison terms was both procedurally and substantively reasonable. B. Decision to Impose Consecutive Sentences In contrast, the district court provided no explanation whatsoever for its decision that Defendant’s two sentences be served consecutively. “If multiple terms of imprisonment are imposed on a defendant at the same time ... the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). The exercise of this authority “is predicated on the district court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements issued by the Sentencing Commission.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir.2011) (citing 18 U.S.C. § 3584(b)). Specifically, the policy statement in U.S.S.G. § 7B1.3(f) states: Any term of imprisonment imposed upon the revocation of ... supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of ... supervised release. U.S.S.G. § 7B1.3(f). Although it reads as mandatory, “[t]his policy statement is not binding on the district court, and construing it to be mandatory would be reversible error.” Johnson, 640 F.3d at 208 (citing United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994)). Without some explanation of the district court’s decision, we are unable to review its application of the § 3553(a) factors or its consideration of the advisory policy statement in U.S.S.G. § 7B1.3(f). See United States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012) (vacating and remanding a supervised release violation sentence because of inadequate explanation). Indeed," }, { "docid": "23607666", "title": "", "text": "PER CURIAM. Carl D. Edwards brings this appeal following the revocation of his supervised release. His attorney has filed a brief on his behalf pursuant to Anders v. California, 386 U.S. - 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking to withdraw as counsel. Finding no nonfrivolous issues, we affirm the district court’s revocation of Edwards’s supervised release and accompanying sentence and conditionally grant counsel’s motion to withdraw. Following the completion of his prison term for ah armed bank robbery conviction, Edwards was alleged to have violated the conditions of his supervised release. On July 21, 2004, Edwards admitted to violating the terms of his release by unlawfully using a controlled substance. The court then imposed a sentence of five months of imprisonment and three years of supervised release. Given Edwards’s admission of the violation, we find no clear error in the district court’s findings of fact supporting the revocation and no abuse of discretion in the decision to revoke Edwards’s supervised release. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.2003) (standard of review); see also 18 U.S.C. § 3583(e)(3) (empowering the district court to revoke a defendant’s supervised release where the defendant violates a superviséd release condition). .Although the Supreme Court’s re.cent. decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), significantly changed the state of federal sentencing, its effect on sentences imposed for supervised release violations is far less dramatic. The United States Sentencing Guidelines associated with supervised release violations were considered advisory even before the Court’s decision in Booker. See United States v. White Face, 383 F.3d 733, 738 (8th Cir.2004) (recognizing that the policy statements in Chapter 7 of the guidelines, relating to supervised release violations, are advisory only). Thus, we find no error in the district court’s consultation of the guidelines in determining Edwards’s sentence. Moreover, our review- of the guidelines associated with supervised release violations reveals that, given Edwards’s criminal history and the nature of his violation, he received the lowest sentence suggested by the guidelines. USSG §§ 7B1.1, p.s., 7B1.4, p.s. We cannot" }, { "docid": "9839876", "title": "", "text": "PER CURIAM. After Steve Brown admitted to violating the conditions of his supervised release, the district court revoked his supervised release and sentenced Brown to 24 months imprisonment. On appeal, Brown contends that the 1994 amendment to 18 U.S.C. § 3553(a)(4)(B) rendered the policy statements in Chapter 7 of the U.S. Sentencing Guidelines Manual regarding supervised release violations binding, rather than advisory, and, therefore, that the court erred by sentencing him above the range suggested by § 7B1.4(a). He also argues that the court abused its discretion by imposing a sentence above the 7-13 month revocation imprisonment range contained in U.S. Sentencing Guidelines Manual § 7B1.4(a), p.s. (1998). Brown first argues that the policy statements in Chapter 7 of the Guidelines are made binding by § 3553(a)(4)(B), as amended, which provides that the district court “shall consider ... the applicable guidelines or policy statements issued by the Sentencing Commission” when imposing a sentence upon revocation of supervised release. Because he did not present this argument below, we are limited to reviewing for plain error. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc), cert. denied, 519 U.S. 938, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996). To warrant reversal under this standard of review, an error must be “clear under current law.” Id. at 192. Brown has not directed our attention to any case law holding that the amendment to § 3553(a)(4)(B) rendered the Chapter 7 policy statements, which the Sentencing Commission itself says are advisory only, binding. Instead, he candidly acknowledges that this argument has been rejected by the circuits which have considered it. Moreover, this circuit has consistently held that the policy statements in Chapter 7 of the Guidelines regarding supervised release violations are advisory to, rather than binding on, the district- court. See United States v. Shaw, 180 F.3d 920, 922 (8th Cir.1999); United States v. Carlton Bernard Brown, 198 F.3d 713 (8th Cir.1999). Finally, as a textual matter, the statute itself does not clearly say that the Chapter 7 policy statements are to be binding on a district court. The mandatory “shall impose" }, { "docid": "22138940", "title": "", "text": "GRUENDER, Circuit Judge. • Johnny Franklin, Jr. appeals the 24-month prison sentence the district court imposed after revoking his supervised release. For the reasons discussed below, we affirm the judgment of the district court. ■ ’ In May 1995, Franklin pled guilty to possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Franklin was sentenced to 120 months in prison and three years of supervised release. He commenced supervised release on June 24, 2003. In December 2003, Franklin’s probation officer submitted a report to the district court alleging that Franklin began violating several conditions of his supervised release less than two months after commencing his term of supervised release. At his revocation hearing, Franklin admitted to five of the alleged violations in the report. Franklin’s counsel advised the district court that the maximum statutory prison sentence applicable to Franklin for revocation of his supervised release was two years, see 18 U.S.C. § 3583(e)(3), and that the probation officer recommended Franklin serve the full two years. Counsel for the Government recommended a 21-month sentence, and counsel for Franklin asked the district court to consider sentencing Franklin within the range of 8-14 months of imprisonment recommended under the Chapter 7 policy statements in the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual § 7B1.4, p.s. (2003); United States v. White Face, 383 F.3d 733, 738 (8th Cir.2004) (noting that the Chapter 7 policy statements in the Guidelines are advisory, rather than binding on the district court). After hearing arguments from counsel, the district court revoked Franklin’s supervised release and sentenced him to 24 months in prison without further explanation. Franklin first argues that the district court abused its discretion by failing to consider certain sentencing factors set forth in 18 U.S.C. § 3553(a), including the Chapter 7 policy statements in the Guidelines. After carefully reviewing the record, we conclude that the district court acted within its discretion. Although the district court is required to consider certain factors set forth in § 3553(a) in a supervised-release-revocation sentencing, “there is no requirement that the district court make specific findings relating to each" } ]

[ { "docid": "11170126", "title": "", "text": "remedial under the Hal-per test. For example, in United States v. Newby, 11 F.3d 1143, 1145 (3rd Cir.1993), the court held that prison disciplinary sanctions were not “so grossly unrelated to prison authorities’ remedial goal so as to constitute a ‘punishment’ within the meaning of the Double Jeopardy Clause.” In United States v. Tilley, 18 F.3d 295, 300 (5th Cir.1994), the court distinguished Austin on the basis that “the forfeiture of drug proceeds [under § 881(a)(6) ] will always be ... roughly proportional to the harm inflicted upon government and society by the drug sale.” (Emphasis added.) But such eases are inapplicable here. The present case involves not prison discipline or drug proceeds but residential real property forfeited under 21 U.S.C. § 881(a)(7); and Austin holds that such a forfeiture is a punishment of the claimant property-owner regardless of the value of the property taken. See United States v. Ripinsky, 20 F.3d 359, 363 n. 5 (9th Cir.1994). While .the Austin decision arose under the Excessive Fines Clause, it compels the conclusion that a § 881(a)(7) forfeiture is also a punishment under the Double Jeopardy Clause. In Dept. of Revenue v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the Supreme Court held that a state tax imposed upon persons convicted of marijuana-growing amounted to a second punishment barred by the Double Jeopardy Clause. Kurth Ranch makes clear that the Austin analysis of what constitutes a punishment applies as well under the Double Jeopardy Clause: “A defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed against him for the same offense in a separate proceeding.” Id. — U.S. at -, 114 S.Ct. at 1945; see also United States v. Torres, 28 F.3d 1463 (7th Cir. (Ill.1994)); State v. 1979 Cadillac Deville, 632 So.2d 1221 (La.App.1994). IV. SAME OFFENSE There is no doubt that McCaslin was subjected to the forfeiture of his residential property, and then to criminal sanctions, as punishments for the same offense. To obtain forfeiture the government had to prove that the property was used “to commit, or" } ]

[ { "docid": "6571878", "title": "", "text": "Oakes. In that case, Judge Jones acknowledged the distinction between the “multiple punishments” and “successive prosecutions” prongs of the Double Jeopardy Clause. Id. at 798 n. 2. The defendant in Stanwood had argued, like Tamez, that his case involved “multiple punishments” for the same offense; therefore, Von Moos required the district court to find that jeopardy attached at the time he began serving his sentence. Id. While the court agreed with the holding of Von Moos, the court found it inapplicable since $405,-089.23 recognized that the “pursuit of criminal and civil forfeiture penalties against the same defendant for the same conduct violates the constitutional protection against successive prosecutions.” Id. (emphasis added). Since the district court noted that the defendant’s case was analogous to $405,089.23, it found that the defendant’s sentencing was not relevant. Id. That the Ninth Circuit employed the prong of the Double Jeopardy Clause involving the protection against “successive prosecutions” in $405,089.23, is further suggested by its recent decision in United States v. Barton, 46 F.3d 51 (9th Cir.1995), amended, 1995 U.S.App. 4593 (9th Cir. Mar. 9, 1995), upon which the government heavily relies to refute Tamez’s contentions. In this case, the Ninth Circuit, citing $405,089.23, stated that “once convicted in a criminal case, a defendant cannot subsequently be punished in a civil forfeiture action based on the same violations of law.” Id. at 52 (emphasis added). Although the Ninth Circuit did not explicitly determine the precise point at which jeopardy attached in the criminal case, this statement lends credence to the government’s contention that the pertinent date is the de fendant’s conviction rather than his sentencing. Based on the Ninth Circuit’s recent decision in Barton, the court’s analysis of $105, - 089.23, and Judge Jones’ decision in Stan-wood, the court finds it must employ the analysis used for determining when jeopardy attaches in the context of “successive prosecutions.” Accordingly, the latest that jeopardy could have attached in Tamez’s criminal proceeding was August 21, 1989. b. Jeopardy in the Civil Forfeiture Context Aside from the controversy surrounding the attachment of jeopardy in Tamez’s criminal action, the parties also" }, { "docid": "6416088", "title": "", "text": "his ease would not qualify as criminal prosecutions under Ward and Mendoza-Martinez; 89 Firearms, 465 U.S. at 362-65, 104 S.Ct. at 1104-06 (since civil forfeiture proceeding is not a criminal prosecution it is not barred by owner’s prior acquittal); One Lot Emerald Cut Stones and One Ring v. U.S., 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (noting difference in mental state between criminal prosecution and civil forfeiture); but see One 1958 Plymouth Sedan v. Comm of Pa., 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (collateral estoppel applies where defendant was acquitted in criminal prosecution and the particular civil forfeiture requires a finding that criminal law had been violated); Since Collette has yet to be con- vieted, any consideration of what punishment would be appropriate would be premature. I recognize that a number of eases and one law review article make assumptions inconsistent with this analysis, but in each case the author ignores the distinction that the Supreme Court has so carefully drawn between the effect of prior criminal prosecutions and prior punishments in double jeopardy jurisprudence. See, e.g., United States v. Tamez, 881 F.Supp. 460, 464 (E.D.Wash.1995); Oakes v. United States, 872 F.Supp. 817 (E.D.Wash.1994); United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994); and see United States v. Tilley, 18 F.3d 295, 298 n. 5 and accompanying text (5th Cir.1994) (dictum); Stephen H. McClain, Running the Gauntlet: An Assessment of the Double Jeopardy Implications of Criminally Prosecuting Drug Offenders and Pursuing Civil Forfeiture of Related Assets under 21 U.S.C. § 881(a)(4), (6) and (7), 70 Notee Dame L.Rev. 941, 984 n. 229 (1995). In Tamez the Court recognized the distinction between criminal prosecutions and penalties but erroneously interpreted the circuit opinions as treating a civil forfeiture as a prior prosecution. See United States v. Barton, 46 F.3d 51 (9th Cir.1995), Amended, 1995 U.S.App. 4593 (9th Cir. Mar. 9, 1995), and United States v. $405,089.23, 33 F.3d 1210 (9th Cir.1994). All of the Ninth Circuit cases depend upon Austin and Halper which discussed civil forfeiture as a subsequent “punishment” where the defendant had previously been" }, { "docid": "10430262", "title": "", "text": "When the judge said no and allowed him to attend, Mr. McDermott argued his own motion for severance. . Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to \"harmless error” analysis. The right is either respected or denied; its deprivation cannot be harmless. Wiggins, 465 U.S. at 177 n. 8, 104 S.Ct. at 950 n. 8. . Some courts have held or suggested that jeopardy might attach at some point before entry of a final judgment. See, e.g., United States v. Barton, 46 F.3d 51, 52 (9th Cir.1995); United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994); United States v. Sanchez-Escareno, 950 F.2d 193, 203 (5th Cir.1991), cert. denied, — U.S. —, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992); United States v. Messino, 876 F.Supp. 980, 981-82 (N.D.Ill.1995). Others have held that jeopardy does not attach until there is a final administrative action or an adjudication of civil liability, or until the final judgment of forfeiture is entered. See United States v. Park, 947 F.2d 130, 135 (5th Cir.1991); Ragin v. United States, 893 F.Supp. 570, 574 (W.D.N.C.1995); United States v. Tamez, 881 F.Supp. 460, 466 (D.Wash.1995); United States v. Stanwood, 872 F.Supp. 791, 798 (D.Ore.1994); United States v. McCaslin, 863 F.Supp. 1299, 1305 (W.D.Wash.1994). Cf. Oakes v. United States, 872 F.Supp. 817, 827-29 (E.D.Wash.1994) (holding that jeopardy attached when defendant in criminal case, which contained no criminal forfeiture count, entered plea agreement calling for forfeiture of property disputed in civil proceeding). . We need not and do not decide here when, if ever, jeopardy attaches in an uncontested administrative forfeiture, which occurs automatically without a hearing after the required notice is given and 20 days pass. . Fed.R.Evid. 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof" }, { "docid": "11023570", "title": "", "text": "the vast majority of civil forfeiture cases.”). Recently, the Ninth Circuit similarly relied on Austin and Halper in holding that civil forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) constitutes punishment which triggers the protections of the Double Jeopardy Clause. United States v. $405,089.23 United States Currency, 33 F.3d 1210 (9th Cir.1994), opinion amended on denial of rehearing, 56 F.3d 41 (9th Cir.1995). Cf United States v. Ursery, 59 F.3d 568 (6th Cir.1995) (holding that civil forfeiture pursuant to § 881(a)(7) followed by criminal conviction for the same offense constituted double jeopardy). The Ninth Circuit reasoned that: the only fair reading of the Court’s decision in Austin is that it resolves the ‘punishment’ issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause. In short, if a forfeiture constitutes punishment under the Halper criteria, it constitutes ‘punishment’ for purposes of both clauses. 33 F.3d at 1219. Thus, the court held that the government violated the Double Jeopardy Clause by obtaining criminal convictions against the defendant and then continuing to pursue the forfeiture action. The court concluded by discussing the practical effect of Austin on the government’s prosecution of cases: Because in the case of statutes like those before us a criminal prosecution and a forfeiture action based on the same offense must now be brought in the same proceeding — that is, the same indictment — the government will often be forced to choose whether to include a criminal forfeiture count in the indictment (and thus forego the favorable burdens it would face in the civil forfeiture proceeding) or to pursue only the civil forfeiture action (and thus forego the opportunity to prosecute the claimants criminally). If, in such cases, the government wishes both to obtain forfeiture and to impose other forms of criminal punishment, it ‘will have to rely to a much greater extent on criminal forfeiture.’ It is entirely reasonable to put the government to this choice. After Austin, the law requires it. 33 F.3d at 1222 (citation omitted). I find the Ninth Circuit’s reasoning persuasive. The government counters" }, { "docid": "6416089", "title": "", "text": "and prior punishments in double jeopardy jurisprudence. See, e.g., United States v. Tamez, 881 F.Supp. 460, 464 (E.D.Wash.1995); Oakes v. United States, 872 F.Supp. 817 (E.D.Wash.1994); United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994); and see United States v. Tilley, 18 F.3d 295, 298 n. 5 and accompanying text (5th Cir.1994) (dictum); Stephen H. McClain, Running the Gauntlet: An Assessment of the Double Jeopardy Implications of Criminally Prosecuting Drug Offenders and Pursuing Civil Forfeiture of Related Assets under 21 U.S.C. § 881(a)(4), (6) and (7), 70 Notee Dame L.Rev. 941, 984 n. 229 (1995). In Tamez the Court recognized the distinction between criminal prosecutions and penalties but erroneously interpreted the circuit opinions as treating a civil forfeiture as a prior prosecution. See United States v. Barton, 46 F.3d 51 (9th Cir.1995), Amended, 1995 U.S.App. 4593 (9th Cir. Mar. 9, 1995), and United States v. $405,089.23, 33 F.3d 1210 (9th Cir.1994). All of the Ninth Circuit cases depend upon Austin and Halper which discussed civil forfeiture as a subsequent “punishment” where the defendant had previously been criminally prosecuted and convicted, no Ninth Circuit case has dealt with the situation here in which characterization of a prior civil proceeding is required and the court concluded that a specific civil forfeiture constituted a criminal prosecution. Halper and Austin point the way to a proper resolution of that question. In those cases, the Supreme Court was careful to distinguish between a criminal prosecution masquerading as a civil proceeding and a true civil proceeding leading to a penalty properly viewed as “punishment” and therefore implicating the Double Jeopardy Clause. Unless a civil forfeiture proceeding satisfies the test of Ward and Mendoza-Martinez, it is not a criminal prosecution and consequently cannot bar a subsequent prosecution, though it might impact available penalties. McCaslin misses the point entirely. See McCaslin, 863 F.Supp. at 1306-07 (treating the civil forfeiture as a prior prosecution for double jeopardy purposes). In his article, McClain sees that, strictly speaking, it is only the potential second punishment and not the criminal prosecution that may be implicated by a pri- or forfeiture, but reasons that:" }, { "docid": "11023569", "title": "", "text": "be aware of the risk he is running.” 124 Cong.Rec. S11965 (July 27, 1978). “We cannot forget that profit, astronomical profit, is the base motivation of drug traffickers.” Id. By “striking out against the profits from illicit drug trafficking” the enactment of § 881(a)(6) would enhance “the punitive and deterrent purposes of the Controlled Substances Act,” which would then “have greater impact on drug trafficking.” Id. The specific holding in Austin is that civil forfeiture constitutes punishment for purposes of the Excessive Fines Clause. In contrast, this case involves a claim under the Double Jeopardy Clause, yet I believe that Austin is controlling for double jeopardy claims as well. Significantly, in Austin the Supreme Court relied on Halper, which involved the Double Jeopardy Clause, to decide whether a civil sanction constituted punishment for purposes of the Excessive Fines Clause. See 1 David B. Smith, Prosecution and Defense of Forfeiture Cases, ¶ 12.10[2], at 12-136 (1994) (“The Supreme Court’s decision in Austin v. United States, makes it clear that Hopper’s, double jeopardy protections do apply to the vast majority of civil forfeiture cases.”). Recently, the Ninth Circuit similarly relied on Austin and Halper in holding that civil forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) constitutes punishment which triggers the protections of the Double Jeopardy Clause. United States v. $405,089.23 United States Currency, 33 F.3d 1210 (9th Cir.1994), opinion amended on denial of rehearing, 56 F.3d 41 (9th Cir.1995). Cf United States v. Ursery, 59 F.3d 568 (6th Cir.1995) (holding that civil forfeiture pursuant to § 881(a)(7) followed by criminal conviction for the same offense constituted double jeopardy). The Ninth Circuit reasoned that: the only fair reading of the Court’s decision in Austin is that it resolves the ‘punishment’ issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause. In short, if a forfeiture constitutes punishment under the Halper criteria, it constitutes ‘punishment’ for purposes of both clauses. 33 F.3d at 1219. Thus, the court held that the government violated the Double Jeopardy Clause by obtaining criminal convictions against the defendant and" }, { "docid": "16917380", "title": "", "text": "double jeopardy protections and should be dismissed); United States v. Stanwood, 872 F.Supp. 791 (D.Or.1994) (a civil forfeiture pursuant to 21 U.S.C. § 881(a)(7) is a punishment for double jeopardy purposes); United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994) (vacating defendant’s criminal conviction for drug offenses due to prior civil forfeiture proceeding brought under 21 U.S.C. § 881(a)(7)). Nevertheless, the court finds that, even if it were to accept defendant’s argument, defendant would not be entitled to relief from his criminal conviction. This is because the court finds that, under any analysis, jeopardy attached in defendant’s criminal prosecution prior to the time it attached in the civil forfeiture proceeding. Upon a thorough review of the Supreme Court opinions cited above and the various lower court opinions dealing with this issue, it is apparent that a great deal of confusion exists as to whether separate civil forfeiture and criminal prosecutions should be analyzed under a “successive prosecutions” or a “multiple punishments” analysis. In Halper, the Supreme Court, in setting forth its holding, speaks in terms of successive punishments. Halper, 490 U.S. at 448, 109 S.Ct. at 1902 (“under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as deterrent or retribution”) (emphasis added). In its analysis of the issue in United States v. $Jp05,089.23 United States Currency, 33 F.3d 1210 (9th Cir.1994), the Ninth Circuit focuses on the Double Jeopardy Clause’s protections against multiple prosecutions. Id. at 1215. In the present case, the court finds that jeopardy attached in defendant’s criminal case prior to the civil forfeiture under either analysis. Under a successive prosecution analysis, jeopardy attaches in a criminal case when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157-58, 57 L.Ed.2d 24 (1978). The jury was impaneled and sworn in defendant’s criminal case on October 6, 1992. This was prior to the date the government executed a warrant for the" }, { "docid": "6571868", "title": "", "text": "seized his real and personal property. All of the civil forfeiture actions filed by the government were consolidated by order of -the court on July 19, 1989, under cause number C-88-608-AAM. On October 27, 1989, the date on which his sentence was to commence, Tamez entered into a stipulation for a decree of forfeiture of certain items of seized property in exchange for the return of his real property along with some items of personal property. This stipulation was signed by the defendant prior to his surrender to the custody of the United States Marshal. The court entered a decree of forfeiture on C-88-608-AAM, on October 30,1989. Although defendant was released from confinement on December 8, 1991, he remains on supervised release and has yet to pay approximately 30% of his criminal fine. DISCUSSION: In United States v. $4.05,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), the Ninth Circuit determined that a civil forfeiture and criminal action pertaining to the same offense violate the Double Jeopardy Clause if: 1) the civil forfeiture action and criminal prosecution constitute separate proceedings; 2) the civil forfeiture constitutes “punishment.” Id. at 1216. It is clear, and the government effectively concedes, that these two requirements are satisfied in this case. However, the government opposes Tamez’s motion on two distinct grounds. First, the government asserts that jeopardy did not attach in the civil proceedings against his property until after his criminal conviction; therefore, the forfeiture was not second, or double, jeopardy. Secondly, the government makes the somewhat more complex argument that Tamez has based his motion for federal habeas relief on a “new rule” which should only be applied prospectively. The issues raised by defendant’s § 2255 motion are a product of the Ninth Circuit’s decision in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994). As this is a relatively recent decision, there is a dearth of caselaw addressing these issues. Furthermore, there appears to be discrepancies between those few applicable cases. However, it is incumbent upon this court to enter this debate in an effort to examine and resolve any perceived inconsistency." }, { "docid": "11023545", "title": "", "text": "that it resolves the ‘punishment’ issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause.” United States v. $405,089.23 United States Currency, 33 F.3d 1210, 1219 (9th Cir.1994), opinion amended on denial of rehearing, 56 F.3d 41 (9th Cir.1995); see also David Smith Prosecution and Defense of Forfeiture Cases ¶ 12.10[2], at 12-131 (“The Supreme Court’s decision in Austin v. United States, makes it clear that Halper s double jeopardy protections do apply to the vast majority of civil forfeiture cases.”). According to Baird, together, Halper and Austin establish that the administrative forfeiture of money under 21 U.S.C. § 881(a)(6) constitutes “punishment” for purposes of double jeopardy analysis. We do not think Halper and Austin go so far. While these precedents do suggest that the civil forfeiture of money under 21 U.S.C. § 881(a)(6) is “punishment” precluding the meting out of additional punishment for the “same offence” by the “same sovereign” in a subsequent proceeding, see $405,089.23 United States Currency, 33 F.3d at 1222 (holding that civil forfeitures of drug proceeds under 21 U.S.C. § 881(a)(6) constitute “punishment” under Halper and Austin); but see Tilley, 18 F.3d at 300 (holding that civil forfeitures of drug proceeds do not constitute “punishment” for double jeopardy purposes), Halper and Austin do not suggest, let alone establish, that administrative forfeiture under § 881(a)(6) amounts to “punishment” relevant to the double jeopardy inquiry. To understand the critical distinction we are drawing between civil and administrative forfeiture, a brief discussion of the nature and process of administrative forfeiture is in order. The purpose of administrative forfeiture is “to save the government the time and expense of [a] judicial [forfeiture] proceeding in cases where the value of the seized property [is] small.” United States v. United States Currency Etc., 754 F.2d 208, 211 (7th Cir.1985). In keeping with this purpose, Federal civil forfeiture statutes allow certain statutorily defined categories of property to be forfeited administratively, i.e., without the filing of a civil forfeiture action in federal district court. See David Smith Prosecution and Defense of Forfeiture Cases" }, { "docid": "22961532", "title": "", "text": "proof of the criminal offense. The forfeiture applies to “[a]ll real property ... which is used ... to eommit or to facilitate ... a violation of this subchapter.” 21 U.S.C. § 881(a)(7). Even though the standard of proof is more easily met in the civil action, the fact remains that the government cannot confiscate Ursery’s residence without a showing that he was manufacturing marijuana. The criminal offense is in essence subsumed by the forfeiture statute and thus does not require an element of proof that is not required by the forfeiture action. See Oakes v. United States, 872 F.Supp. 817, 824 (E.D.Wash.1994) (reaching this very conclusion) ; see also United States v. Tilley, 18 F.3d 295, 297-98 (5th Cir.) (“[I]f the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a ‘punishment,’ the Double Jeopardy Clause will bar the pending criminal trial.”), cert. denied, — U.S. —, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 495 (9th Cir.1994) (“[Ujnless the civil forfeiture under § 881(a)(4) can be predicated upon some offense other than those for which MeCullogh has already been tried, the civil forfeiture is barred by the Double Jeopardy Clause.”). 3. Separate Proceedings The Supreme Court has made clear that the government may “seek[] and obtain[ ] both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding.” Halper, 490 U.S. at 450, 109 S.Ct. at 1903 (emphasis added). There is disagreement among the circuits, however, as to when a civil forfeiture action and criminal prosecution can properly be considered components of a single proceeding so that double jeopardy is not triggered. We find that the facts in this case simply do not support a determination that the civil forfeiture and criminal prosecution constituted such a single proceeding. In United States v. Millan, 2 F.3d 17, 20 (2d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994), the Second Circuit concluded that a civil forfeiture suit and criminal" }, { "docid": "7911670", "title": "", "text": "the firearms seized in February 1994. Clementi entered a guilty plea in January 1995. Subsequently, he filed a motion to dismiss on double jeopardy grounds. The district court denied the motion and sentenced Clementi to 27 months of imprisonment. Clementi appeals. II. The Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for the same offense after either an acquittal or a conviction and against multiple punishments for the same offense. Schiro v. Farley, — U.S. -, -, 114 S.Ct. 783, 789, 127 L.Ed.2d 47 (1994). This case involves a civil forfeiture and a criminal prosecution, and does not implicate the multiple prosecutions strand of double jeopardy. The issue before us is whether the district court erred in finding that the indictment did not violate the guarantee against multiple punishments. “We review a district court’s denial of a motion to dismiss an indictment on double jeopardy grounds de novo.” United States v. Petty, 62 F.3d 265, 267 (8th Cir.1995). Clementi asserts that forfeiture under 18 U.S.C. § 924(d) is punishment for purposes of double jeopardy analysis, thus rendering his subsequent indictment for the same offense a violation of the Double Jeopardy Clause, dementi’s assertion rests on the Ninth Circuit’s reasoning in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), amended on denial of reh’g, 56 F.3d 41 (9th Cir.1995), petition for cert. filed, 64 USLW 3161 (U.S. Aug. 28,1995) (No. 95-346). In Currency, the Ninth Circuit held that civil forfeiture under 18 U.S.C. § 981(a)(1)(A) and 21 U.S.C. § 881(a)(6) constitutes punishment for the purpose of double jeopardy analysis. Id. at 1221. The court reached this decision based upon its interpretation of three recent Supreme Court cases: Department of Revenue of Montana v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). See Currency, 33 F.3d at 1218-22; 56 F.3d at 42. Clementi argues that the Ninth Circuit’s reasoning in Currency compels" }, { "docid": "8083405", "title": "", "text": "crime” was not punitive under Halper. In an even more recent opinion, another panel of our court considered, without deciding, whether the Supreme Court in Austin intended to supersede the case-by-case methodology of Halper and Whalers Cove for determining whether forfeiture constitutes punishment for the purposes of the Double Jeopardy Clause. United States v. All Assets of G.P.S. Automotive, 66 F.3d 483, 491 (2d Cir.1995). Four other circuits that have considered this question have concluded that “the only fair reading of the Court’s decision in Austin is that it resolves the ‘punishment’ issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause.” United States v. $405,089.23 United States Currency, 33 F.3d 1210, 1219 (9th Cir.1994), amended in part on denial of rehearing, 56 F.3d 41 (9th Cir.1995), cert. granted, — U.S. -, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996); see United States v. Baird, 63 F.3d 1213, 1216 (3d Cir.1995) (quoting $405,089.23 United States Currency with approval), petition for cert. filed, 64 U.S.L.W. 3318 (U.S. Oct. 17, 1995) (No. 95-630); United States v. Perez, 70 F.3d 345, 348-49 (5th Cir.1995) (applying Austin approach to civil forfeiture under 21 U.S.C. § 881(a)(4) for purposes of double jeopardy analysis); United States v. Ursery, 59 F.3d 568, 573 (6th Cir.1995) (“[Ujnder Halper and Austin, any civil forfeiture under 21 U.S.C. § 881(a)(7) constitutes punishment for double jeopardy purposes.”), cert. granted, — U.S. -, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996); cf. United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994) (finding Austin approach inapplicable to forfeiture of drug proceeds under § 881(a)(6), because such proceeds can be said to be “roughly proportion[ate]” to the costs incurred by the government and society as a result of the crimes). Although it is not clear that the Supreme Court intended Austin to define punishment for the purposes of double jeopardy analysis, we see no principled basis for distinguishing between “punishment” in the context of the Excessive Fines Clause and “punishment” in the context" }, { "docid": "17657527", "title": "", "text": "months. The court then sentenced Pierce to 210 months on his conspiracy conviction, and to the mandatory 60 months consecutive sentence on his firearm conviction, see 18 U.S.C. § 924(c)(1) (firearm sentence must be consecutive to the underlying sentence), for a total sentence of 270 months’ imprisonment. This appeal followed. II. Pierce makes five arguments on appeal: (1) the entry of judgment in the civil forfei ture action bars the instant criminal prosecution under the Fifth Amendment’s Double Jeopardy Clause; (2) the denial of the two motions to withdraw constituted an abuse of discretion and led to a violation of his Sixth Amendment rights; (3) the 1984 Florida withheld adjudication was not a “conviction” cognizable under the career offender provisions of the guidelines; (4) the 1985 Florida sexual battery conviction was not a “crime of violence” as that term is defined by the career offender provisions; and (5) a conspiracy conviction cannot predicate a finding that a defendant is a career offender. We discuss each in turn. A. Double Jeopardy Pierce first contends that the Double Jeopardy Clause precluded the government from further pursuing his criminal prosecution once judgment entered in the civil forfeiture action. In Pierce’s view, the civil and criminal actions were separate proceedings arising out of the same criminal acts and instituted by the federal government for penal purposes. See United States v. $4.05,089.23 U.S. Currency, 33 F.3d 1210, 1216-22 (9th Cir.1994) (Double Jeopardy Clause is violated where the same criminal acts give rise to both a criminal prosecution and a separate, civil forfeiture action under 21 U.S.C. § 881(a)(6); civil forfeiture under § 881(a)(6) is “punishment”); but see United States v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a particular civil forfeiture brought under § 881(a)(6) not to be punishment), cert. denied, — U.S. -, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994); United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir.1994) (viewing a criminal prosecution and an overlapping forfeiture action to be part of “a single, coordinated prosecution”); United States v. Millan, 2 F.3d 17, 19-21 (2d Cir.1993) (same), cert. denied," }, { "docid": "17657528", "title": "", "text": "Double Jeopardy Clause precluded the government from further pursuing his criminal prosecution once judgment entered in the civil forfeiture action. In Pierce’s view, the civil and criminal actions were separate proceedings arising out of the same criminal acts and instituted by the federal government for penal purposes. See United States v. $4.05,089.23 U.S. Currency, 33 F.3d 1210, 1216-22 (9th Cir.1994) (Double Jeopardy Clause is violated where the same criminal acts give rise to both a criminal prosecution and a separate, civil forfeiture action under 21 U.S.C. § 881(a)(6); civil forfeiture under § 881(a)(6) is “punishment”); but see United States v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a particular civil forfeiture brought under § 881(a)(6) not to be punishment), cert. denied, — U.S. -, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994); United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir.1994) (viewing a criminal prosecution and an overlapping forfeiture action to be part of “a single, coordinated prosecution”); United States v. Millan, 2 F.3d 17, 19-21 (2d Cir.1993) (same), cert. denied, — U.S. -, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994). Besides arguing that we should reject $405,089.23 and adopt the reasoning of Tilley, One Single Family Residence, and Millan, the government responds that the Double Jeopardy Clause, if violated, would bar only the civil forfeiture proceeding, and not Pierce’s criminal prosecution. Because we agree with this last argument, we reject Pierce’s double jeopardy challenge without deciding whether the forfeiture action was a separate penal proceeding. In relevant part, the Fifth Amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It is well established that this Double Jeopardy Clause protects against both successive punishments and successive prosecutions for the same criminal offense. E.g., United States v. Dixon, — U.S. -, -, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The Clause does not even potentially come into play, however, until the defendant has first been put into jeopardy. Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 2159-60, 57 L.Ed.2d 24 (1978)." }, { "docid": "18660246", "title": "", "text": "740, 743 n. 3 (E.D.Wash.1994); United States v. Ailemen, 893 F.Supp. 888 (N.D.Cal.1995); United States v. Plunk, No. A94-036 (JWS) (D.Alaska, Nov. 4, 1994); United States v. Sanchez-Cobarruvias, No. 94-0732-IEG (S.D.Cal., October 13, 1994). The Court recognizes that the latter cases may now have less force because the Ninth Circuit recently held that a criminal prosecution following an uncontested administrative forfeiture does not violate the Double Jeopardy Clause. United States v. Cretacci, 62 F.3d 307, 309 (9th Cir.1995). On the other hand, Cretacci may be distinguishable because it involved the administrative forfeiture proceedings of 19 U.S.C. §§ 1602-1618 rather than the civil forfeiture proceedings of § 881 that are at issue here. Baird, 63 F.3d at 1216-18. At any rate, irrespective of whether they follow Torres or not, these cases are consulted for guidance only. Because none of them are binding upon this Court, and because the Second Circuit has not yet taken a position on the issue, we are free to reach our own conclusion regarding the strength or weakness of the Torres court’s decision. . Thus, Serfass concerned the constitutionality of the successive prosecution of a defendant under the same charges rather than of multiple punish-merits under different charges for the same offense. . Based on the Supreme Court's ruling in Halper and Austin, at least two circuit courts of appeal have determined that separate civil forfeiture and criminal proceedings against a Defendant may constitute double jeopardy. See Ursery, 59 F.3d at 571; $405,089.23 U.S. Currency, 33 F.3d at 1216. . The Torres court found it significant that there was no way to be sure that the money actually belonged to the defendant because he had not made a claim at the forfeiture proceeding. 28 F.3d at 1465-66. See also, Amiel 995 F.2d at 371-72 (double jeopardy claim not yet ripe where it is unclear whether defendant has legitimate claim to seized properties). This potential problem is not an issue in the present case because Brophil's deed to the property, which was recorded in the Town of Glover land records, provided notice of his ownership of the parcel." }, { "docid": "6416087", "title": "", "text": "must be provided or the statute is unconstitutional and presumably any determinations under it void and not merely voidable. Id. 184-87, 84 S.Ct. at 575-77. In summary, it appears reasonable to read the footnote in Kurth to suggest that unless a prior civil proceeding is really a criminal prosecution it would not bar further prosecution. In order to bar a subsequent prosecution the forfeiture would have to qualify as an “ostensibly civil proceedings” which failed the Mendozar-Martinez, test, i.e., a criminal wolf in civil sheep’s clothing; that a proceeding might be considered quasi-criminal for some purposes would not suffice. See, e.g., Ward, 448 U.S. at 251-55, 100 S.Ct. at 2642-2644 (discussing Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). On the other hand, a prior civil proceeding which resulted in a penalty that qualified as punishment under Kurth, Austin, and Helper might preclude a subsequent criminal punishment even if it would not preclude trial and conviction. This is the most that Col-lette can expect because the civil forfeiture in his ease would not qualify as criminal prosecutions under Ward and Mendoza-Martinez; 89 Firearms, 465 U.S. at 362-65, 104 S.Ct. at 1104-06 (since civil forfeiture proceeding is not a criminal prosecution it is not barred by owner’s prior acquittal); One Lot Emerald Cut Stones and One Ring v. U.S., 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (noting difference in mental state between criminal prosecution and civil forfeiture); but see One 1958 Plymouth Sedan v. Comm of Pa., 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (collateral estoppel applies where defendant was acquitted in criminal prosecution and the particular civil forfeiture requires a finding that criminal law had been violated); Since Collette has yet to be con- vieted, any consideration of what punishment would be appropriate would be premature. I recognize that a number of eases and one law review article make assumptions inconsistent with this analysis, but in each case the author ignores the distinction that the Supreme Court has so carefully drawn between the effect of prior criminal prosecutions" }, { "docid": "6571869", "title": "", "text": "prosecution constitute separate proceedings; 2) the civil forfeiture constitutes “punishment.” Id. at 1216. It is clear, and the government effectively concedes, that these two requirements are satisfied in this case. However, the government opposes Tamez’s motion on two distinct grounds. First, the government asserts that jeopardy did not attach in the civil proceedings against his property until after his criminal conviction; therefore, the forfeiture was not second, or double, jeopardy. Secondly, the government makes the somewhat more complex argument that Tamez has based his motion for federal habeas relief on a “new rule” which should only be applied prospectively. The issues raised by defendant’s § 2255 motion are a product of the Ninth Circuit’s decision in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994). As this is a relatively recent decision, there is a dearth of caselaw addressing these issues. Furthermore, there appears to be discrepancies between those few applicable cases. However, it is incumbent upon this court to enter this debate in an effort to examine and resolve any perceived inconsistency. 1. Tamez’s Criminal Conviction Did Not Constitute Second Jeopardy Defendant Tamez specifically argues that the initial “punishment,” or jeopardy, in this case occurred on October 27, 1989, when he signed the stipulation of forfeiture. (Ct. Rec. 114 at 7-8). He further maintains that the second “punishment” only manifested once he began serving his court imposed prison sentence, which commenced on October 27, 1989, after the signing of the forfeiture stipulation. Basing his argument on $405,089.23, Tamez claims that the criminal conviction must be set aside as violative of the Fifth Amendment protection against double jeopardy. However, careful examination of the caselaw reveals that Tamez’s analysis of the point at which jeopardy attaches in the criminal and civil forfeiture contexts is incorrect. a. Successive Prosecutions or Multiple Punishments? The Double Jeopardy Clause of the Fifth Amendment protects against two distinct types of abuses: successive prosecutions for the same offense and multiple punishments for the same offense. United States v. Dixon, — U.S. -, -, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993); North Carolina v. Pearce," }, { "docid": "16917379", "title": "", "text": "Court held, among other things, that the assessment on harvested marijuana was a form of double jeopardy invalid under the Constitution. The bankruptcy court’s holding was upheld by the District Court and the Court of Appeals. The Supreme Court affirmed this result, holding that the proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time for the same offense. Id. at -, 114 S.Ct. at 1948. Given the Supreme Court’s holdings in Halper, Austin and Kurth Ranch, the defendant’s argument that the separate criminal and civil forfeiture actions brought against him by the government were violative of the double jeopardy clause has much merit. Indeed, a number of decisions by various appellate and district courts have reached that very conclusion. See United States v. $405,089.23 United States Currency, 33 F.3d 1210 (9th Cir.1994) (holding that separate civil forfeiture proceeding under 21 U.S.C. 881(a)(6), which was brought subsequent to a criminal conviction for drug distribution, violated double jeopardy protections and should be dismissed); United States v. Stanwood, 872 F.Supp. 791 (D.Or.1994) (a civil forfeiture pursuant to 21 U.S.C. § 881(a)(7) is a punishment for double jeopardy purposes); United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994) (vacating defendant’s criminal conviction for drug offenses due to prior civil forfeiture proceeding brought under 21 U.S.C. § 881(a)(7)). Nevertheless, the court finds that, even if it were to accept defendant’s argument, defendant would not be entitled to relief from his criminal conviction. This is because the court finds that, under any analysis, jeopardy attached in defendant’s criminal prosecution prior to the time it attached in the civil forfeiture proceeding. Upon a thorough review of the Supreme Court opinions cited above and the various lower court opinions dealing with this issue, it is apparent that a great deal of confusion exists as to whether separate civil forfeiture and criminal prosecutions should be analyzed under a “successive prosecutions” or a “multiple punishments” analysis. In Halper, the Supreme Court, in setting forth its holding, speaks in terms of" }, { "docid": "6571877", "title": "", "text": "criminal action for the same conduct constituted double jeopardy. Faced with a situation similar to the one presented by Tamez’s § 2255 motion, Judge Quackenbush was forced to determine whether the defendant’s criminal sentence or the civil forfeiture constituted the prohibited second punishment. In determining when the “punishment,” or jeopardy, relating to the criminal prosecution manifested, the court focused on the date that the court imposed sentence, May 24, 1991, and the date the court entered a formal written judgment, August 28, 1991. Oakes, 872 F.Supp. at 828-829. Judge Quackenbush found the point of the defendant’s sentencing to be significant for double jeopardy purposes despite the fact that the defendant had previously pleaded guilty to the criminal charge on March 6, 1991, pursuant to a written plea agreement. Id. at 819. Tamez, therefore, effectively argues that Oakes requires the court to find that jeopardy attaches in the criminal context upon the commencement of the defendant’s sentence. In United States v. Stanwood, 872 F.Supp. 791 (D.Or.1994), however, the district court reached a result directly contrary to Oakes. In that case, Judge Jones acknowledged the distinction between the “multiple punishments” and “successive prosecutions” prongs of the Double Jeopardy Clause. Id. at 798 n. 2. The defendant in Stanwood had argued, like Tamez, that his case involved “multiple punishments” for the same offense; therefore, Von Moos required the district court to find that jeopardy attached at the time he began serving his sentence. Id. While the court agreed with the holding of Von Moos, the court found it inapplicable since $405,-089.23 recognized that the “pursuit of criminal and civil forfeiture penalties against the same defendant for the same conduct violates the constitutional protection against successive prosecutions.” Id. (emphasis added). Since the district court noted that the defendant’s case was analogous to $405,089.23, it found that the defendant’s sentencing was not relevant. Id. That the Ninth Circuit employed the prong of the Double Jeopardy Clause involving the protection against “successive prosecutions” in $405,089.23, is further suggested by its recent decision in United States v. Barton, 46 F.3d 51 (9th Cir.1995), amended, 1995 U.S.App. 4593" }, { "docid": "22961531", "title": "", "text": "as the Excessive Fines Clause”). 2. Same Offense The Double Jeopardy Clause protects the accused from multiple punishments in multiple proceedings for the same offense. Under United States v. Dixon, — U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the test for whether two offenses constitute the “same offense” is whether “each offense contains an element not contained in the other.” Dixon, — U.S. at —, 113 S.Ct. at 2856. The government argues that the civil forfeiture and criminal conviction here do not constitute punishment for the same offense because the criminal prosecution requires proof that a person, the defendant, committed the crime, while the forfeiture requires proof that the property subject to forfeiture has been involved in the commission of a criminal violation. Thus each offense requires an element that the other does not. We disagree with this analysis. . We find that the forfeiture and conviction are punishment for the same offense because the forfeiture necessarily requires proof of the criminal offense. The forfeiture applies to “[a]ll real property ... which is used ... to eommit or to facilitate ... a violation of this subchapter.” 21 U.S.C. § 881(a)(7). Even though the standard of proof is more easily met in the civil action, the fact remains that the government cannot confiscate Ursery’s residence without a showing that he was manufacturing marijuana. The criminal offense is in essence subsumed by the forfeiture statute and thus does not require an element of proof that is not required by the forfeiture action. See Oakes v. United States, 872 F.Supp. 817, 824 (E.D.Wash.1994) (reaching this very conclusion) ; see also United States v. Tilley, 18 F.3d 295, 297-98 (5th Cir.) (“[I]f the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a ‘punishment,’ the Double Jeopardy Clause will bar the pending criminal trial.”), cert. denied, — U.S. —, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489," } ]

[ { "docid": "22532724", "title": "", "text": "Allen under either § 1983 or state tort law, the risk to Allen would be of central concern.4 But Allen's presence in the car cannot enhance Rickard's Fourth Amendment rights. After all, it was Rickard who put Allen in danger by fleeing and refusing to end the chase, and it would be perverse if his disregard for Allen's safety worked to his benefit. C We have held that petitioners' conduct did not violate the Fourth Amendment, but even if that were not the case, petitioners would still be entitled to summary judgment based on qualified immunity. An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was \" 'clearly established' \" at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. ----, ----, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). And a defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. Id., at 2083-2084. In other words, \"existing precedent must have placed the statutory or constitutional question\" confronted by the official \"beyond debate.\" Ibid. In addition, \"[w]e have repeatedly told courts ... not to define clearly established law at a high level of generality,\" id., at 2074, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced. We think our decision in Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) ( per curiam ) squarely demonstrates that no clearly established law precluded petitioners' conduct at the time in question. In Brosseau, we held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to \"other officers on foot who [she] believed were in the immediate area, ... occupied vehicles in [the driver's] path[,] and ... any other citizens who might be in the area.\" Id., at 197, 125 S.Ct. 596" } ]

[ { "docid": "10614160", "title": "", "text": "Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014)). The doctrine “exists to protect officers ‘firom undue interference with their duties and from potentially disabling threats of liability.’ ” Lash, 786 F.3d at 5 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’” Messerschmidt v. Millender, — U.S. —, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). Consequently, whether qualified immunity applies “ ‘generally turns on the objective legal reasonableness of the [official’s] action, assessed in light of the legal rules that were clearly established at the time.’ ” Id. at 1245 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), mandated a two-step protocol for evaluating a government officials’ qualified immunity defense to a § 1983 claim. First, the court must determine whether the plaintiff has “alleged facts showing a violation of a constitutional right,” and, second, the court must decide “whether the constitutional right was clearly established at the time of the incident.” Fox v. District of Columbia, 794 F.3d 25, 29 (D.C.Cir.2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The test is flexible in that a court may address either of the two steps first. Pearson, 555 U.S. at 242, 129 S.Ct. 808; Fox, 794 F.3d at 29 (same). A right is “clearly established” if it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (quoting Reichle v. Howards, — U.S. —, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). “ ‘Ordinarily, in order for the law to be" }, { "docid": "2598536", "title": "", "text": "on qualified immunity “is a collateral order subject to immediate appeal.” Brauner v. Coody, 793 F.3d 493, 497 (5th Cir.2015). However, “[t]his court has jurisdiction over such an order only ‘to the extent that the district court’s order turns on an issue of law.’ ” Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir.2014) (quoting Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.2010)). Accordingly, we lack jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the interlocutory appeal “challenges the materiality of [the] factual issues.” Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 490 (5th Cir.2001). We review de novo the district court’s conclusions regarding the materiality of the facts, Gibson, 773 F.3d at 666, “considering] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment,” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004) (en banc). “Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id. III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). A plaintiff can overcome a qualified immunity defense by showing “(1) that the official violated a statutory or Constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))." }, { "docid": "3893575", "title": "", "text": "were not violated here, and the district court’s grant of summary judgment on all three grounds must be reversed. However, while the district court erred in granting summary judgment for Defendants, we nonetheless affirm the district court’s denial of partial summary judgment as to Green. As detailed above, triable issues remain on all of Green’s claims that preclude judgment as a matter of law in favor of either party. The district court’s denial of Green’s motion for partial summary judgment is affirmed, and these claims are to be determined by a jury. III. Qualified Immunity The district court also dismissed Green’s suit on the grounds that Sergeant Kim was protected by qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Stanton v. Sims, 571 U.S.-, 134 S.Ct. 3, 4-5,187 L.Ed.2d 341 (2013) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). We have found that an officer will be denied qualified immunity in a § 1983 action “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer’s conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in that situation.” Torres, 648 F.3d at 1123. In this case, the district court found that Sergeant Kim was protected by qualified immunity based on the finding that Sergeant Kim did not violate any constitutional right. However, as the preceding analysis makes clear, this remains an" }, { "docid": "9002204", "title": "", "text": "no law clearly established \"what the [C]onstitution requires of a government official in [Palmer's] position under similar circumstances.\" As a result, the court held qualified immunity barred plaintiffs' federal constitutional claims. The court further dismissed plaintiffs' common law claims for failure to exhaust administrative remedies and declined to exercise supplemental jurisdiction over the remaining state constitutional claims. This appeal followed. II. Discussion A. Qualified Immunity We review the district court's qualified immunity analysis on a Rule 12(b)(6) motion de novo. Ewell v. Toney , 853 F.3d 911, 918 (7th Cir. 2017). In doing so, \"we consider the facts, including all reasonable inferences from them, in the light most favorable to the nonmoving party.\" Id. at 918-19. \"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). \"Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.\" Id. \"The defense provides 'ample room for mistaken judgments' and protects all but the 'plainly incompetent and those who knowingly violate the law.' \" Green v. Newport , 868 F.3d 629, 633 (7th Cir. 2017) (quoting Wheeler v. Lawson , 539 F.3d 629, 639 (7th Cir. 2008) ). \"A state official is protected by qualified immunity unless the plaintiff shows: '(1) that the official violated a statutory or constitutional right, and (2) that the right was \"clearly established\" at the time of the challenged conduct.' \" Kemp v. Liebel , 877 F.3d 346, 350-51 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). \"If either inquiry is answered in the negative, the defendant official\" is protected by qualified immunity. Green , 868" }, { "docid": "9002205", "title": "", "text": "102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). \"Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.\" Id. \"The defense provides 'ample room for mistaken judgments' and protects all but the 'plainly incompetent and those who knowingly violate the law.' \" Green v. Newport , 868 F.3d 629, 633 (7th Cir. 2017) (quoting Wheeler v. Lawson , 539 F.3d 629, 639 (7th Cir. 2008) ). \"A state official is protected by qualified immunity unless the plaintiff shows: '(1) that the official violated a statutory or constitutional right, and (2) that the right was \"clearly established\" at the time of the challenged conduct.' \" Kemp v. Liebel , 877 F.3d 346, 350-51 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). \"If either inquiry is answered in the negative, the defendant official\" is protected by qualified immunity. Green , 868 F.3d at 633 (quoting Gibbs v. Lomas , 755 F.3d 529, 537 (7th Cir. 2014) ). \"In order to avoid '[u]nnecessary litigation of constitutional issues' and expending scarce judicial resources that ultimately do not impact the outcome of the case,\" courts \"may analyze the 'clearly established' prong without first considering whether the alleged constitutional right was violated.\" Kemp , 877 F.3d at 351 (alteration in original) (quoting Pearson , 555 U.S. at 236-37, 129 S.Ct. 808 ). The district court adopted that approach here. Under the clearly established prong, \"the burden is on plaintiffs to demonstrate the alleged violation of their [constitutional] right[s] was 'clearly established.' \" Id. \"To be clearly established at the time of the challenged conduct, the right's contours must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right....\" Id. (alteration in original) (quoting Gustafson v. Adkins , 803 F.3d 883, 891 (7th Cir. 2015) ). \"[T]he crucial question [is] whether the official acted reasonably in the particular circumstances that he or she" }, { "docid": "19627712", "title": "", "text": "at 493, 111 S.Ct. 1934. In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U.S., at 555, 87 S.Ct. 1213. Rather, we concluded that police officers could assert \"the defense of good faith and probable cause\" against the claim for an unconstitutional arrest because that defense was available against the analogous torts of \"false arrest and imprisonment\" at common law. Id., at 557, 87 S.Ct. 1213. In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170, 112 S.Ct. 1827 (KENNEDY, J., concurring); accord, Crawford-El v. Britton, 523 U.S. 574, 611, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (Scalia, J., joined by THOMAS, J., dissenting). In the decisions following Pierson, we have \"completely reformulated qualified immunity along principles not at all embodied in the common law.\" Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (discussing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff's claim under § 1983, we instead grant immunity to any officer whose conduct \"does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.\" Mullenix v. Luna, 577 U.S. ----, ---- - ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam ) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ----, ----, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (a Government official is liable under the 1871 Act only if \" 'existing precedent ... placed the statutory or constitutional question beyond debate' \" (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ))." }, { "docid": "986632", "title": "", "text": "Court next assesses whether Defendants are entitled to qualified immunity on Plaintiffs claim regarding his designation as a discretionary sex offender. 2. Qualified immunity Qualified immunity protects public officials from liability for civil damages “unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. -, -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015); see also Garcia v. Does, 779 F.3d 84, 92 (2d Cir.2015). “To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Taylor, 575 U.S. at -, 135 S.Ct. at 2044; see also Garcia, 779 F.3d at 92 (noting that the “dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted”). “When properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Taylor, 575 U.S. at -, 135 S.Ct. at 2044 (alterations omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). “Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established,” Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004), and while there need not be “a case directly on point ... existing precedent must have placed the statutory or constitutional question beyond debate,” Taylor, 575 U.S. at -, 135 S.Ct. at 2044 (quoting Ashcroft, 563 U.S. at -, 131 S.Ct. at 2083). As explained above, although a prisoner or parolee has a liberty interest in avoiding the stigma and tangible impairment associated with a registered sex offender designation, neither the Second Circuit nor the Supreme Court has made clear that the interest extends to a discretionary sex offender designation. Thus, Plaintiffs right to receive due process prior to being designated a discretionary sex offender is not clearly established, and .to the extent that Plaintiff had such an interest upon which Defendants wrongly infringed, Plaintiff" }, { "docid": "22502969", "title": "", "text": "motion to dismiss, we \"accept[ ] the facts alleged in the complaint as true, drawing all reasonable inferences in the plaintiff's favor.\" Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). To avoid dismissal, the \"complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is plausible on its face when it contains sufficient facts to support a reasonable inference that the defendant is liable for the misconduct alleged. Id. II. Qualified Immunity A. Standard Defendants argue that they are entitled to qualified immunity on Plaintiff's federal constitutional claims asserted under § 1983. \"Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.\" Dalrymple v. Reno , 334 F.3d 991, 994 (11th Cir. 2003) (internal quotation marks omitted). \"When properly applied, [qualified immunity] protects 'all but the plainly incompetent or those who knowingly violate the law.' \" Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). To be clearly established, a right must be well-established enough \"that every reasonable official would have understood that what he is doing violates that right.\" Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (internal quotation marks omitted and alteration adopted). In other words, \"existing precedent must have placed the statutory or constitutional question beyond debate\" and thus given the official fair warning that his conduct violated the law. Id . (emphasis added); Coffin v. Brandau , 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (\"The critical inquiry is whether the law provided [Defendant officers] with 'fair warning' that their conduct violated the Fourth Amendment.\"). Fair warning is most commonly provided by materially similar precedent from the Supreme Court, this Court, or the highest state court in which the case arose. See Terrell v. Smith" }, { "docid": "23250353", "title": "", "text": "1983 Section 1983 provides a claim against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates another’s constitutional rights. 42 U.S.C. § 1983. “To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.’” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir.2000)). B. Qualified Immunity “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.2011) (en banc). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and courts will not deny immunity unless “existing precedent ... placed the statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). Therefore, a plaintiff seeking to overcome qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 2080 (citation omitted). A court has discretion to decide which prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). IV. DISCUSSION On appeal, Whitley presents two theories of liability she asserts warrant reversal of the district court’s decision. First, relying on our decision in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.1994) (en banc), Whitley argues that Appellees are liable under § 1983 for acting with deliberate indifference to her constitutional rights by engaging in an investigation premised on catching Ariaz (the primary constitutional wrongdoer) in the act of abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir.1995), Whitley asserts that Appellees" }, { "docid": "11298537", "title": "", "text": "against Officers Matthews and Collins'. He has not appealed judgment in favor of Forte and members of the Board. II. Discussion “We review .a district court’s qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to [Gilani] and drawing all reasonable inferences in [his] favor.” Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir. 2014) (quoting Shannon v. Koehler, 616 F.3d 855, 861-62 (8th Cir. 2010)). We will uphold a grant of summary judgment if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments” and “protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, — U.S. —, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). It shields officers from liability “unless [their] conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Shekleton v. Eichenberger, 677 F.3d 361, 365 (8th Cir. 2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). To evaluate a claim of qualified immunity, we engage in a two-pronged inquiry: “(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.” Id “[U]nder either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam). We begin our analysis by determining whether Gilani has presented facts sufficient to show the violation of a constitutional right. “[T]he Constitution prohibits selective enforcement of the law based on considerations such as [ethnicity] ... [and] the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause....”" }, { "docid": "986631", "title": "", "text": "However, it is not clear to the Court whether certain—or, indeed, any—special conditions of parole must be imposed as a result of the designation, or whether a parolee might be designated a discretionary sex offender with no special conditions of parole imposed as a result. In the absence of evidence from Defendants regarding the effects or permanence of the designation, the Court cannot deter mine whether Plaintiff meets the “stigma plus” test and was entitled to process before he was designated a discretionary sex offender. See Crenshaw, 652 Fed.Appx. at 60, 2016 WL 3409658, at *2 (“A protectable liberty interest may arise in connection with a ‘loss of reputation’ when ‘coupled with some other tangible element.’ ” (quoting Valmonte, 18 F.3d at 999)). Construing the evidence in the light most favorable to Plaintiff, Defendants have not met their burden to prove that “there is no genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a); Davis, 821 F.3d at 243. The Court next assesses whether Defendants are entitled to qualified immunity on Plaintiffs claim regarding his designation as a discretionary sex offender. 2. Qualified immunity Qualified immunity protects public officials from liability for civil damages “unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. -, -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015); see also Garcia v. Does, 779 F.3d 84, 92 (2d Cir.2015). “To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Taylor, 575 U.S. at -, 135 S.Ct. at 2044; see also Garcia, 779 F.3d at 92 (noting that the “dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted”). “When properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Taylor, 575 U.S. at -, 135 S.Ct. at 2044 (alterations" }, { "docid": "19627713", "title": "", "text": "\"completely reformulated qualified immunity along principles not at all embodied in the common law.\" Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (discussing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff's claim under § 1983, we instead grant immunity to any officer whose conduct \"does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.\" Mullenix v. Luna, 577 U.S. ----, ---- - ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam ) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ----, ----, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (a Government official is liable under the 1871 Act only if \" 'existing precedent ... placed the statutory or constitutional question beyond debate' \" (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) )). We apply this \"clearly established\" standard \"across the board\" and without regard to \"the precise nature of the various officials' duties or the precise character of the particular rights alleged to have been violated.\" Anderson, supra, at 641-643, 107 S.Ct. 3034 (internal quotation marks omitted). We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7-17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017). Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in \"interpret [ing] the intent of Congress in enacting\" the Act. Malley, supra, at 342, 106 S.Ct. 1092 ; see Burns, supra, at 493, 111 S.Ct. 1934. Our qualified immunity precedents instead represent precisely the sort of \"freewheeling policy choice[s]\" that we have" }, { "docid": "997309", "title": "", "text": "defense provides ‘ample room for mistaken judgments’ and protects all but the ‘plainly incompetent and those who knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). To overcome a defendant’s invocation of qualified immunity, a plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “If either inquiry is answered in the negative, the defendant official is entitled to summary. judgment.” Gibbs, 755 F.3d at 537. Courts are free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. Because the answer to this inquiry is dispositive, we address only whether the right at issue was clearly established. The plaintiff bears the burden of demonstrating that a right was clearly established at the time the alleged violation occurred. Kiddy-Brown v. Blagojevich, 408 F.3d 346, 359 (7th Cir. 2005). For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S.Ct. at 308 (citation omitted). The right must be “sufficiently clear that every reasonable official would understand that what he is doing violates that right.” Id. (citation and quotation marks omitted). The Supreme Court has instructed that “clearly established law should not be defined at a high level of generality.” White v. Pauly, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per cu-riam) (citation and .quotation marks omitted). While a case directly on point is not required, “the clearly established law must be ‘particularized’ to the facts of the case,” Id. at 551 (citation omitted). The Court has found that “[s]uch specificity is especially important in the Fourth Amendment context, where ... ‘it is" }, { "docid": "11291026", "title": "", "text": "even higher level of care and observation than that which was being' given him) or that Defendant Thomas deliberately ignored such a high level of risk. The district court therefore concluded that no genuine issue of material fact precluded Thomas from being entitled to qualified immunity. This appeal followed. II A. Standard of Review We review the district court’s summary judgment decision de novo and apply the same standard that was used by the district court. Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005). Summary judgment is appropriate if the record discloses “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if the summary judgment “evidence is such that a reasonable jury could return a verdict for the [non-movant].” Id. “Qualified immunity protects officers from suit unless their conduct violates a clearly established constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Once a defendant asserts the qualified immunity defense, “[t]he plaintiff bears the burden of negating qualified immunity.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “A plaintiff seeking to overcome qualified immunity must show: ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly estabr lished at the time of the challenged conduct.’ ” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Despite this burden-shifting, all reasonable inferences must be drawn in the non-movant plaintiffs favor. Brown, 623 F.3d at. 253. B. Deliberate Indifference The Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.”" }, { "docid": "986633", "title": "", "text": "omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). “Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established,” Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004), and while there need not be “a case directly on point ... existing precedent must have placed the statutory or constitutional question beyond debate,” Taylor, 575 U.S. at -, 135 S.Ct. at 2044 (quoting Ashcroft, 563 U.S. at -, 131 S.Ct. at 2083). As explained above, although a prisoner or parolee has a liberty interest in avoiding the stigma and tangible impairment associated with a registered sex offender designation, neither the Second Circuit nor the Supreme Court has made clear that the interest extends to a discretionary sex offender designation. Thus, Plaintiffs right to receive due process prior to being designated a discretionary sex offender is not clearly established, and .to the extent that Plaintiff had such an interest upon which Defendants wrongly infringed, Plaintiff cannot recover money damages from Defendants because they are entitled to qualified immunity. See Taylor, 575 U.S. at -, 135 S.Ct. at 2044; see also Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir.1995) (holding that prison officials were entitled to qualified immunity in the context of a prisoner’s due process claims where the New York Appellate Division had upheld a somewhat contrary rule to the rule set forth by the Second Circuit). Nevertheless, qualified immunity does not bar declaratory and injunctive relief. See Allen, 64 F.3d at 81 (noting that qualified immunity was not grounds for dismissing all of the plaintiffs claims because the doctrine “does not bar declaratory and injunctive relief,” which the plaintiff had requested (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))); Giacalone v. Abrams, 850 F.2d 79, 84 (2d Cir.1988) (“When a plaintiff seeks both damages and equitable relief, successful assertion of qualified immunity frees an official only from the burden of defending against personal liability for damages. The official must still participate" }, { "docid": "15594208", "title": "", "text": "to apply Fourth Amendment limits on government power” to Swope. Phoenician Br. 22. Regardless of the Fourth Amendment analysis, Swope is a government official fox-purposes of immunity. The Chapter 7 Trustee is created by Congress, appointed by and “operating under the aegis of the U.S. Trustee,” and entrusted with the “statutory duties ... to gather and liquidate the property of the estate, to be accountable for the estate, ensure that the debtor performs his or her obligations,” and “perform[] [other] adjudicatory and administrative functions.” In re Castillo, 297 F.3d 940, 950-51 (9th Cir. 2002). We thus hold that bankruptcy trustees are government officials, entitled under Harlow to qualified immunity from § 1983 claims by third parties when they act in their official capacity in a manner that is not contrary to clearly established law. See 457 U.S. at 818 & n.30, 102 S.Ct. 2727. B Qualified immunity, “properly ■ applied, ... protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “To overcome qualified immunity, a plaintiff must plead facts ‘showing (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.’ ” Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 168-69 (3d Cir. 2016), cert. denied, — U.S. —, 137 S.Ct. 161, 196 L.Ed.2d 121 (2016) (quoting al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074). And an official’s conduct violates clearly established law if “there [is] sufficient precedent at the time of action, factually similar to the plaintiffs allegations, to put defendant on notice that ... her conduct is constitutionally prohibited.” McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001). Such precedent must come either from the Supreme Court or a ‘“robust consensus of cases of persuasive authority’ in the Court of Appeals.” Mammaro, 814 F.3d at 169 (quoting Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (per curiam)). In this case, Swope was not" }, { "docid": "997308", "title": "", "text": "public official presents an “abstract issue of law[,]” such as “whether the right at issue is clearly established or whether the district court correctly decided a question of law[.]” Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014) (citations omitted). We review a district court’s qualified immunity determination de novo. D.Z. v. Buell, 796 F.3d 749, 753 (7th Cir. 2015) (citation omitted). B. Qualified Immunity Framework “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, — U.S. —, 136 S.Ct 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Qualified immu nity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officers from harassment, distraction, and liability when they perform their duties reasonably. ” Pearson, 555 U.S. at 231, 129 S.Ct. 808. “The defense provides ‘ample room for mistaken judgments’ and protects all but the ‘plainly incompetent and those who knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). To overcome a defendant’s invocation of qualified immunity, a plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “If either inquiry is answered in the negative, the defendant official is entitled to summary. judgment.” Gibbs, 755 F.3d at 537. Courts are free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. Because the answer to this inquiry is dispositive, we address only whether" }, { "docid": "1004983", "title": "", "text": "Immunity Need Not Be Addressed “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.’ ” Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)), In this way, the defense “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 744, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). In determining whether a government official should be entitled to qualified immunity, the two pertinent questions are (1) “whether the facts that a plaintiff has alleged ... or shown ... make out a violation of a constitutional right,” and (2) “whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232, 129 S.Ct. 808 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In the instant matter, the parties hotly dispute whether the individual defendants may invoke the defense of qualified immunity at all, given that they are not state actors for all purposes. In determining whether qualified immunity applies to shield a defendant. from liability under § 1983, the Supreme Court has distinguished private employees performing state functions, like the individual defendants in this case, from government employees, who are presumptively entitled to the defense. Thus, in Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997), the Court considered whether private prison guards could invoke the defense, noting that “this Court has ... accorded immunity where a ‘tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine,’ ” id. at 403, 117 S.Ct. 2100 (quoting Wyatt v. Cole, 504 U.S. 158," }, { "docid": "108440", "title": "", "text": "alleged violation of substantive due process was clearly established. This is a question of law over which our review is unrestricted. Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir.2003). III. Qualified immunity protects government officials from insubstantial claims in order to “shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). To overcome qualified immunity, a plaintiff must plead facts “showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 2080. In our case, the Division has not challenged whether Mammaro sufficiently alleged a violation of substantive due process, and we limit our review to the question of clearly established law. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Id. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “In other words, there must be sufficient precedent at the time of action, factually similar to the plaintiffs allegations, to put defendant on notice that his or her conduct is constitutionally prohibited.” McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir.2001). We look first for applicable Supreme Court precedent. Even if none exists, it may be possible that a “robust consensus of cases of persuasive authority” in the Court of Appeals could clearly establish a right for purposes of qualified immunity. Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (per curiam) (quoting City & Cty. of S.F. v. Sheehan, — U.S. —," }, { "docid": "11222049", "title": "", "text": "at issue here was clearly established, we begin with the second inquiry. A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, every reasonable official would understand that what he is doing violates the right alleged. Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011); Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Supreme Court recently emphasized that “ ‘[w]e do not require a case directly on point’ before concluding that the law is clearly established, ‘but existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074). We look first for applicable Supreme Court precedent. If none exists, it may be possible that a “robust consensus of cases of persuasive authority” in the Courts of Appeals could clearly establish a right for purposes of qualified immunity. Taylor v. Barkes, — U.S. -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015). To make out a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) he engaged in First Amendment protected activity, (2) the defendant took adverse action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights, and (3) the adverse action was prompted by the plaintiffs protected activity. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Rossiter alleged that Ramsey and the Department retaliated against him because he exercised his First Amendment right to be a member of the FOP, his union. The District Court found a clearly established right of a public-sector employee to be a member of an association. Rossiter v. Ramsey, No. CV 13-3429, 2015 WL 7756175 (E.D. Pa. Dec. 2, 2015) (citing Smith v. Ark. State Highway Emps., Local 131, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979)). However, what it did not do was focus specifically on the kind of associational activity present in this case. See Saucier," } ]

[ { "docid": "86183", "title": "", "text": "prove: (1) that he belongs to a protected class; (2) that he was performing his duties satisfactorily; (3) that he was discharged or subject to an adverse employment decision; and (4) that the discharge or decision occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class. See McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997) (citations omitted); Butts v. City of New York Dep’t of Preservation and Dev., 1998 WL 13851 (S.D.N.Y. Jan.15, 1998). In this case, there does not appear to be any dispute that Parmlee, as a “Native (black) American Cherokee Indian” and as a Jehovah’s Witness, is a member of a protected class under Title VII. There also appears to be no dispute that Parmlee was subject to adverse employment decisions, in that he was not promoted and was terminated by DRS on two occasions. However, Parmlee has failed to establish a prima facie case of employment discrimination because he has not shown that any of the adverse employment decisions occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in a protected class. See McLee, 109 F.3d at 134. Plaintiff provided no affidavits, deposition transcripts, or documents in opposition to defendants’ motion that could raise an inference of discrimination on the basis of plaintiffs race, gender, religion, national origin, or color. Parmlee claims that he was wrongfully terminated by DRS, forced to attend unscheduled meetings, denied the benefits of employment seniority, given menial and demeaning duties, denied promotion opportunities, and denied training opportunities because of DRS’s discrimination against him. However, Parmlee’s opposition to defendants’ summary judgment motion did not provide any evidence of these claims which would create a genuine issue of material fact for trial. As discussed above in relation to Parmlee’s hostile work environment claim, conclusory allegations or denials in legal memoranda are not evidence and cannot by themselves create a genuine issue of material fact where none exists. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). In the absence of" } ]

[ { "docid": "12712340", "title": "", "text": "far. Id. The Supreme Court found no violation of Title VII, stating that “TWA was not required by Title VII to carve out a special exception to its seniority system in order to help Hardison to meet his religious obligations.” Id. at 83, 97 S.Ct. 2264. The Court held that TWA had no duty to accommodate Hardison so that “the privilege of having Saturdays off would be allocated according to religious beliefs.” Id. at 85, 97 S.Ct. 2264. Rejecting such religious favoritism outright, the Court concluded that because “the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment,” the Court would not “construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.” Id. at 85, 97 S.Ct. 2264. Hardison has been followed consistently by the courts of every circuit. Most recently, the Fifth Circuit applied Hardison to affirm summary judgment against a plaintiff seeking a religious accommodation in work shifts. See Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir.2000). In that case, Weber, a Jehovah’s Witness employed as a driver by Roadway Express, asserted that his religion prevented him from making long-haul overnight runs with female partners. Id. at 272. The Court of Appeals held that allowing Weber to skip such job runs would wrongly force Roadway to deny the run and job preferences of Weber’s coworkers, who might be required to take the runs assigned to Weber. Id. at 273. The court held that the rationale of Hardi-son controlled even though the Roadway Express drivers had no collective bargaining agreement or other contractual right to any particular run. Id. In applying Hardison, the Weber court held that the “mere possibility of an adverse impact on co-workers as a result of ‘skipping over’ is sufficient to constitute an undue hardship.” Id. at 274. The Court of Appeals affirmed the district court’s grant of summary judgment. Id. at 276. As in Hardison and Weber, Hussein asks this Court to discriminate in favor of his religious beliefs by allowing him to entirely avoid" }, { "docid": "17665904", "title": "", "text": "OPINION OF THE COURT HUYETT, District Judge. Plaintiff Charles R. Gavin (Gavin), a former service operator for defendant People’s Natural Gas Company (PNGC), has appealed from an Order of the District Court for the Western District of Pennsylvania granting PNGC’s motion for summary judgment. Gavin instituted this employment discrimination case under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976), after he had been discharged because of his refusal to fulfill one of his job assignments. Claiming that this refusal was religiously mandated, Gavin alleged, inter alia, that he had been denied reasonable accommodation to his religion as required by Section 701(j) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(j) (Section 701(j)). In granting summary judgment, the district court stated that “proceeding to trial on the facts of this case would necessarily lead to an entanglement of this court with religious beliefs,” Gavin v. People’s Natural Gas Co., 464 F.Supp. 622, 632 (W.D.Pa.1979), and thus held that Section 701(j) was unconstitutional as applied. The questions presented are whether summary judgment was properly granted, and whether on the facts of this case Section 701(j) is constitutional in light of the Establishment Clause. Because we believe that summary judgment should not have been granted, we shall not consider the constitutional issue. We vacate the order of the district court and remand for further proceedings. I. Gavin, who is a member of the Jehovah’s Witnesses, was employed by PNGC as a service operator. As part of his work, he was required to raise and lower the American flag. Gavin refused to do so, asserting that this act violated his religious convictions. As a result, he was discharged from his employment. Gavin then pursued his claim of unlawful discharge through union grievance proceedings, challenging the validity of his termination pursuant to provisions of the collective bargaining contract between his union and PNGC. At the final grievance meeting held on June 14, 1979, PNGC offered to reinstate Gavin with full back pay and to reassign him to the job of gas man rather" }, { "docid": "5850306", "title": "", "text": "the religious practice or show that any accommodation would result in undue hardship. Id. (citations omitted). Initially, the undersigned notes that the Jehovah’s Witnesses religion has been recognized by various courts. See Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir.2000) (no Title VII violation when company failed to accommodate Jehovah’s Witness truck driver who objected to making overnight runs with a female partner, inasmuch as “skipping over” trucker driver when scheduling said runs would impose undue hardship); Gavin v. Peoples Natural Gas Co., 613 F.2d 482 (3d Cir.1980) (genuine issue of material fact existed as to whether employer accommodated Jehovah’s Witness employee through its offer of reinstatement in position which would not require him to raise and lower the flag, an act which violated his religious convictions); Parmlee v. Connecticut Dep’t of Revenue Services, 160 F.Supp.2d 294 (D.Conn.2001) (Jehovah’s Witness employee failed to establish a prima facie cause of employment discrimination when he did not show that any adverse employment decisions occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in a protected class (i.e., as a Jehovah’s Witness)); Palmer v. Board of Educ., 466 F.Supp. 600 (N.D.Ill.1979) (the activities of a kindergarten teacher Jehovah’s Witness in refusing to teach her students the pledge of allegiance and to participate in holiday activities and songs were not constitutionally protected); Kentucky Comm’n on Human Rights v. Lesco Manuf., 736 S.W.2d 361 (Ky.App.1987) (Secretary Jehovah’s Witness who refused to answer phone with “Merry Christmas” based upon religious beliefs was discriminated against based upon her religion). Defendants contend that Vélez fails to state a claim under Title VII based upon religious discrimination. More particularly, they argue that Vélez did not inform her employer of her religious beliefs, and she failed to explain how the wearing of a Santa Claus cap conflicts with her religious beliefs of not celebrating Christmas. Conversely, plaintiffs argue that they have met the prima facie requirements for religious discrimination, inasmuch as Vélez is a practicing Jehovah’s Witness, she indicated to Marroig that she was a Jehovah’s Witness and wearing the Santa" }, { "docid": "17665905", "title": "", "text": "The questions presented are whether summary judgment was properly granted, and whether on the facts of this case Section 701(j) is constitutional in light of the Establishment Clause. Because we believe that summary judgment should not have been granted, we shall not consider the constitutional issue. We vacate the order of the district court and remand for further proceedings. I. Gavin, who is a member of the Jehovah’s Witnesses, was employed by PNGC as a service operator. As part of his work, he was required to raise and lower the American flag. Gavin refused to do so, asserting that this act violated his religious convictions. As a result, he was discharged from his employment. Gavin then pursued his claim of unlawful discharge through union grievance proceedings, challenging the validity of his termination pursuant to provisions of the collective bargaining contract between his union and PNGC. At the final grievance meeting held on June 14, 1979, PNGC offered to reinstate Gavin with full back pay and to reassign him to the job of gas man rather than service operator. Gavin refused this offer, however, and as a result the union decided not to appeal the grievance to arbitration. Gavin also filed an unfair labor practice charge against PNGC with the National Labor Relations Board, but this charge was withdrawn at the direction of the Pittsburgh Regional Office of the Board after Gavin refused the reinstatement offer. Likewise, the Unemployment Compensation Board rejected Gavin’s claim in light of that refusal. Gavin had also filed a complaint with the Pennsylvania Human Relations Commission (PHRC), which dismissed his complaint after determining that his religion did not mandate his refusal to raise and lower the flag. An appeal from the PHRC decision to the Commonwealth Court of Pennsylvania was dismissed. The Equal Employment Opportunity Commission also considered Gavin’s case and issued a Right to Sue letter after determining that PNGC had violated Title VII. Gavin filed suit in the District Court for the Western District of Pennsylvania within 90 days of the issuance of that letter, alleging both racial and religious discrimination. The district court" }, { "docid": "5850305", "title": "", "text": "EEOC v. Unión Independiente de la Autoridad de Acueductos Y Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (1st Cir.2002); see also 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.1 (“[R]eligious practices ... include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”). Religious beliefs protected by Title VII need not be “acceptable, logical, consistent, or comprehensible to others.... ” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). To establish a prima facie case of religious discrimination based on a failure to accommodate, plaintiff Vélez must show that “(1) a bona fide religious practice conflicts with an employment requirement; (2) she brought the practice to defendant Progreso’s attention; and (3) the religious practice was the basis for the adverse employment decision.” Unión Independiente, 279 F.3d at 55 (citations omitted). Once Vélez establishes a prima facie case, the burden shifts to Progreso to show that it made a reasonable accommodation of the religious practice or show that any accommodation would result in undue hardship. Id. (citations omitted). Initially, the undersigned notes that the Jehovah’s Witnesses religion has been recognized by various courts. See Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir.2000) (no Title VII violation when company failed to accommodate Jehovah’s Witness truck driver who objected to making overnight runs with a female partner, inasmuch as “skipping over” trucker driver when scheduling said runs would impose undue hardship); Gavin v. Peoples Natural Gas Co., 613 F.2d 482 (3d Cir.1980) (genuine issue of material fact existed as to whether employer accommodated Jehovah’s Witness employee through its offer of reinstatement in position which would not require him to raise and lower the flag, an act which violated his religious convictions); Parmlee v. Connecticut Dep’t of Revenue Services, 160 F.Supp.2d 294 (D.Conn.2001) (Jehovah’s Witness employee failed to establish a prima facie cause of employment discrimination when he did not show that any adverse employment decisions occurred in circumstances giving rise to an inference of discrimination on the" }, { "docid": "5091880", "title": "", "text": "Because of his refusal, he was terminated by his employer pursuant to the terms of a collective bargaining agreement. The court held § 701(j) unconstitutional, specifically disapproving the majority analysis in Cummins. Yott, supra, 428 F.Supp. at 765. The court noted that the “secular purpose” ascribed to the statute by the Cummins majority was that “the rule was designed to put teeth in the existing prohibition of religious discrimination.” Id. at 766, citing Cummins. In response the court stated: Realistically nothing could be farther from the truth. . . “Teeth” are put into the law by a comprehensive enforcement system which includes action by the Equal Employment Opportunity Commission and the Attorney General of the United States. Id. The court stressed that government must remain neutral, which it could not do under § 701(j): Government simply cannot make the choice — termed reasonable or otherwise— that conduct which lacks either discriminatory intent or discriminatory application can be circumscribed because religious beliefs may oppose its implementation. Faced with such a decision government must declare its neutrality. Id. at 767. The Central District then appended a “Supplementary Opinion” in which it held that under the facts of the case no reasonable accommodation could be had. Id. at 767-770. On appeal to the Ninth Circuit, the Court of Appeals, at 602 F.2d 904 (9th Cir. 1979), seized upon the holding in the Supplementary Opinion, concluded that the trial court’s decision that there could be no reasonable accommodation was not clearly erroneous and affirmed the decision “without reaching the question of whether Section 701(j) is unconstitutional.” Id. at 906. In January, 1979, the Western District of Pennsylvania ruled the statute unconstitutional in Gavin v. Peoples Natural Gas Co., 464 F.Supp. 622. In Gavin an employee was discharged because he failed to perform his duty of raising and lowering the company’s American flag. The employee asserted it was against his religious beliefs as a Jehovah’s Witness. After reviewing a selection of Establishment Clause cases, the court noted that the question of encouraging religion “is often one of balancing legitimate state interests against prohibited results or" }, { "docid": "1903542", "title": "", "text": "that their children were not receiving the same instruction that other classes had received and that if she were to remain, they would hesitate to enroll their children in kindergarten there. At the commencement of her second year teaching in September, 1977 plaintiff received a letter from Paskind directing her to do the following: 1) Teach and direct, with proper diction and understanding, the Pledge of Allegiance to the flag of the United States. 2) Teach and direct the proper words and music of “America.” 3) Teach and direct the proper words and music of other appropriate patriotic songs as well as other songs customarily taught to kindergarten children. 4) Teach and direct proper rhythms, dances and body movements to develop large motor skills. 5) Teach, direct and conduct activities preparatory to a variety of holidays commonly observed so children learn the ethos of all people and develop tolerance and appreciation. 6) Teach and direct play activities which develop social and personal interrelationships. 7) Teach children, by direction and example, to express skills of appreciation and gratitude. The letter further stated that plaintiff had the right to express her own views “in a moderate way within the purview of a given course of study and in keeping with the maturity level of the children being taught.” By an October 2, 1977 letter, plaintiff responded that due to her religious principles she would not comply with directives 1, 2, 3 and 5. Specifically, she stated compliance would “damage my spiritual relationship with God, Jehovah [and] that [it] would damage my conscience serving Him.” She stated that since the Bible proscribes her bowing down to any idol and that in her view the flag represented such an idol, she could not comply with the directive. She further stated that since she believed in the coming of God’s government over mankind, she would not, as a Jehovah’s Witness, commit herself patriotically to any existing government. She cited various biblical passages in support of her refusal to conduct holiday activities. Plaintiff pledged she would put forth extra effort in complying with directives 4, 6" }, { "docid": "12712341", "title": "", "text": "270 (5th Cir.2000). In that case, Weber, a Jehovah’s Witness employed as a driver by Roadway Express, asserted that his religion prevented him from making long-haul overnight runs with female partners. Id. at 272. The Court of Appeals held that allowing Weber to skip such job runs would wrongly force Roadway to deny the run and job preferences of Weber’s coworkers, who might be required to take the runs assigned to Weber. Id. at 273. The court held that the rationale of Hardi-son controlled even though the Roadway Express drivers had no collective bargaining agreement or other contractual right to any particular run. Id. In applying Hardison, the Weber court held that the “mere possibility of an adverse impact on co-workers as a result of ‘skipping over’ is sufficient to constitute an undue hardship.” Id. at 274. The Court of Appeals affirmed the district court’s grant of summary judgment. Id. at 276. As in Hardison and Weber, Hussein asks this Court to discriminate in favor of his religious beliefs by allowing him to entirely avoid the Union’s longstanding roll call rules with which every other Union member must comply. To permit such an individualized exemption would present an undue hardship for the Union. The roll call attendance rule is rooted in the Industry Wide Agreement and has been utilized consistently since 1985. See Ward Aff. ¶ 8. The roll call procedure neutrally governs the allocation of valuable job rights for all Union members, without which charges of favoritism would fly. Ward Aff. ¶¶ 8, 18. To vary the roll call procedure and thereby permit Hussein to absent himself from Friday roll call but receive jobs nonetheless would throw this well-established institution into chaos. Such perceived favoritism would, in all likelihood, precipitate a landslide of lawsuits charging unfair preferential treatment. See Ward Aff. ¶ 9 (“Waiters who wrongly believe that roll call has been administered unfairly have sued the Union in court or before the U.S. National Labor Relations Board.”). An employer need not accommodate an employee’s need for time off for religious observance when such accommodation would compromise the rights" }, { "docid": "10823719", "title": "", "text": "district court abused its discretion in denying the request for reconsideration. The district court correctly found that Weber’s motion to amend the summary judgment record was a transparent effort to avoid the adverse ruling. CONCLUSION This appeal arose from a Title VII claim of religious discrimination in employment by Weber, a trucker and Jehovah’s Witness who was dismissed because his religious beliefs prevent him from making long-haul overnight trips with women truckers. The district court did not err in granting Roadway’s Motion for Summary Judgment or in denying Weber’s Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. Accordingly, we AFFIRM the district court’s granting of summary judgment and its denial of Weber’s Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. . There is evidence that drivers are allowed to \"divorce” other drivers if they no longer wish to ride together. Similarly, a driver can submit a \"refuse-to-ride” letter when the driver does not want to be paired with another specific driver with whom he has previously ridden. Finally, the evidence shows that Defendant occasionally allows a driver to be passed over for an emergency or for personal reasons. . When Weber informed his supervisor, John Mizell (\"Mizell”) of the conflict between Roadway’s employment policies and his religious beliefs, Mizell summarily rejected Weber’s proposal and refused to discuss accommodation. Mizell's response was to inform Weber that if he could not ride with females he was terminated. No cases cited by Roadway support the proposition that an employer refusing to offer any sort of reasonable accommodation has not violated Title VII. . The district court limited its discussion to Weber as a casual driver and did not consider Roadway's arguments concerning the burden of accommodating Weber if he became a regular driver. The district court stated that if Weber were a regular driver with some degree of seniority, its analysis would differ because the regular drivers' seniority is governed by a collective bargaining agreement, and accommodating Plaintiff could effect those rights. . “As Defendant points out, Plaintiff was aware of the refuse-to-ride letters when John Mizell’s" }, { "docid": "5091881", "title": "", "text": "Id. at 767. The Central District then appended a “Supplementary Opinion” in which it held that under the facts of the case no reasonable accommodation could be had. Id. at 767-770. On appeal to the Ninth Circuit, the Court of Appeals, at 602 F.2d 904 (9th Cir. 1979), seized upon the holding in the Supplementary Opinion, concluded that the trial court’s decision that there could be no reasonable accommodation was not clearly erroneous and affirmed the decision “without reaching the question of whether Section 701(j) is unconstitutional.” Id. at 906. In January, 1979, the Western District of Pennsylvania ruled the statute unconstitutional in Gavin v. Peoples Natural Gas Co., 464 F.Supp. 622. In Gavin an employee was discharged because he failed to perform his duty of raising and lowering the company’s American flag. The employee asserted it was against his religious beliefs as a Jehovah’s Witness. After reviewing a selection of Establishment Clause cases, the court noted that the question of encouraging religion “is often one of balancing legitimate state interests against prohibited results or one of the degree of involvement between church and state.” Id. at 627. The court went on to discuss § 701(j) in light of the Nyquist standard. Citing Cummins and the District Court in Yott, the judge in Gavin “recognize[d] that there are valid arguments to be made on both sides of the test of ‘secular purpose’ with this amendment.” Id. at 629. He also remarked that “whether the effect of the amendment is primarily to advance religion is an unsettled question.” Id. He cited the dissent in Cummins and a number of religion cases which did not reach the constitutional issue in concluding that “individuals of certain religious beliefs have been benefitting under the 1972 amendment.” Also citing Catholic Bishop of Chicago v. N.L. R.B., 559 F.2d 1112, 1129 (7th Cir. 1977), aff’d 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), the court noted that the employer raised serious constitutional challenges to the validity of the amendment under the “purpose” and “effect” tests. The judge believed, however, that “these questions could better" }, { "docid": "10823706", "title": "", "text": "last more than ten hours. Drivers on these two boards have some degree of seniority and are able to bid on runs based on their seniority. Drivers from the B Extra Board are dispatched solely by seniority, and when a two-person, overnight run cannot be filled by a team from the B Extra Board that has bid on the run, the vacancy, or vacancies if both positions are unfilled, will be satisfied by other drivers on the B Extra Board or the Casual Board. When hired, all drivers are conferred “casual” status, meaning they are dispatched on runs not bid on or otherwise filled by regular, full-time drivers. Drivers are dispatched from the casual board on an as-needed basis, usually when a two-person, overnight run cannot be filled by either a team of two drivers that has bid on the run or by one or more drivers from the B Extra Board. Casual drivers are dispatched in the order in which they have returned from other runs. Driver compensation for any run depends on the number of miles logged. In early July of 1996, Weber applied for a position as a truck driver with Roadway. As a Jehovah’s Witness, Weber asserts that his religious beliefs require that he refrain from making long-haul overnight runs with a female partner who is not his wife. The sincerity of Weber’s religious beliefs appears to be undisputed. Approximately two weeks after being hired, Weber discovered that Roadway employed female drivers on overnight runs. Weber contacted his supervisor, John Mizell, to notify him that he could not accept any run that included a female partner. Mr. Mizell informed Weber that working with women was part of his job and that he would have to work with women or would not receive any driving assignment. Subsequently, Weber filed suit against Roadway alleging a failure to accommodate his religious beliefs pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(j), 2000e-2(a)(l). STANDARD OF REVIEW This court exercises de novo review of the granting of a summary judgment. SMWNTS Holdings, Inc. v. DeVore," }, { "docid": "22663357", "title": "", "text": "See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557. . They continue to live in San Francisco, where Zehatye is an active Jehovah’s Witness. . In 1994, in accordance with a presidential decree, the Eritrean government revoked the trading licenses of some Jehovah's Witnesses and dismissed most of those who worked in the civil service. . Neither Zehatye's testimony nor her declaration in support of the asylum application offer any details regarding the alleged \"constant surveillance by government agents.” . Since there was no express adverse credibility finding below, we assume that Zehatye's factual contentions are true. Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000). . Zehatye claims that her youngest sister died of pneumonia due to the cramped living conditions that her family endured when they were forced to live with relatives. There is no evidence, however, linking the living conditions or the government's conduct to the sister’s illness. . For example, according to various State Department reports, an unknown number of persons were detained without charge because of political opinion. See e.g., U.S. Dep't of State, Eritrea: Country Reports On Human Rightspractices 2002 (Mar. 31, 2003); U.S. Dep't of State, Eritrea: Country Reports On Human Rights Practices 2001 (Mar. 4, 2002). . The dissent cites the 2002 Religious Freedom Report, which references four Jehovah’s Witnesses who \"have been detained for varying periods of time, some more than five years” \"without charge and without being tried for failing to participate in national service.” The Report also notes that the army “resorted to various forms of extreme physical punishment to force objectors, including some members of Jehovah’s Witnesses, to perform military service.” We are not persuaded that \"any reasonable adjudicator would be compelled to conclude,” based on this evidence, that Jehovah's Witnesses are singled out for \"severe disproportionate punishment” because of their religious beliefs. —Therefore, we must affirm the IJ's findings under-the^ substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B). . Nor does the dissent's citation to statements in the 2003 Country Report regarding harassment, discrimination and detention of Jehovah's Witnesses." }, { "docid": "10823707", "title": "", "text": "number of miles logged. In early July of 1996, Weber applied for a position as a truck driver with Roadway. As a Jehovah’s Witness, Weber asserts that his religious beliefs require that he refrain from making long-haul overnight runs with a female partner who is not his wife. The sincerity of Weber’s religious beliefs appears to be undisputed. Approximately two weeks after being hired, Weber discovered that Roadway employed female drivers on overnight runs. Weber contacted his supervisor, John Mizell, to notify him that he could not accept any run that included a female partner. Mr. Mizell informed Weber that working with women was part of his job and that he would have to work with women or would not receive any driving assignment. Subsequently, Weber filed suit against Roadway alleging a failure to accommodate his religious beliefs pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(j), 2000e-2(a)(l). STANDARD OF REVIEW This court exercises de novo review of the granting of a summary judgment. SMWNTS Holdings, Inc. v. DeVore, 165 F.3d 360, 364 (5th Cir.1999). Summary judgment shall be entered in favor of the moving party, if the record, taken as a whole, shows 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. Id.; Fed.R.Civ.P. 56(c). A factual dispute is “genuine” where a reasonable jury could return a verdict for the non-moving party. Id.; Crowe v. Henry, 115 F.3d 294, 296 (5th Cir.1997). If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial and summary judgment is proper. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 597, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The district court’s findings of fact are reviewed on the “clearly erroneous” standard. Fed.R.Civ.P. 52(a). Weber’s appeal of the trial court’s refusal to grant his motion for reconsideration or to alter or amend judgment is reviewed under an abuse of discretion" }, { "docid": "1626832", "title": "", "text": "words, the array of concerns spoken of by the Supreme Court in relation to a collective bargaining agreement and the role it plays in determining whether a proposed accommodation rises to the level of an undue hardship were not present in Arlington. In addition, the record indicates that on two occasions Defendant held meetings in an attempt to accommodate Plaintiff, such that it cannot be said that Defendant never considered accommodating Plaintiffs religious beliefs. Furthermore, because Defendant’s employees are represented by a labor organization, Defendant is prohibited from direct dealing with the employees thereby prohibiting Defendant from soliciting voluntary swaps of runs. See, e.g., 29 U.S.C. § 159(a). Although Plaintiff attempts to vitiate this prohibition by relying upon McDaniel v. Essex Int’l, Inc., 571 F.2d 338 (6th Cir.1978), Plaintiffs attempt is in vain. As Defendant notes in its brief on appeal, McDaniel is of no moment inasmuch as the Court in that case did not address direct dealing with employees in an attempt to circumvent a collective bargaining agreement. We are further persuaded that the district court did not err in granting Defendant summary judgment on this issue by the Fifth Circuit’s recent decision in Weber v. Roadway Express, Inc., 199 F.3d 270, 275 (5th Cir.2000). In Weber, the Fifth Circuit held that it was an undue hardship to require the employer, Roadway Express, to skip over a truck driver on a seniority board in order to accommodate one of its driver’s religious beliefs that going on a sleeper run with a female was wrong. Id. There, the plaintiff truck driver, a Jehovah’s witness, informed his employer, Roadway Express, that his religious beliefs prevented him from making sleeper runs with females other than his wife. Id. at 272. The sincerity of the plaintiffs religious belief appeared to be undisputed; however, the employer informed the plaintiff that “working with women was part of his job and that he would have to work with women or would not receive any driving assignment.” Id. The plaintiff filed suit claiming religious discrimination under Title VII, and the district court granted the employer summary judgment" }, { "docid": "1903540", "title": "", "text": "MEMORANDUM OPINION FLAUM, District Judge: The instant case for injunctive relief presents sensitive first amendment questions concerning a school board’s proposed discharge of a teacher because of her refusal, based on religious belief, to instruct her students in the Pledge of Allegiance, to lead them in certain patriotic songs and to conduct instruction and activities concerning certain national holidays. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3). The cause is before the court on her motion for a preliminary injunction. Fed.R.Civ.P. 65. Defendants move for summary judgment. Fed.R.Civ.P. 56. For the reasons stated below, plaintiff’s motion is denied. Defendants’ motion is granted and judgment is entered in their behalf. The facts are not in dispute. Plaintiff, a Jehovah’s Witness, was appointed in September, 1976 as a full-time non-tenured teacher by defendant Board of Education. She teaches a kindergarten class in the Field School. Prior to commencement of the 1976-77 school year, plaintiff visited defendant Florence Paskind, the school’s principal, to inform her that due to her sincerely held religious convictions she would not teach “anything having to do with love of country, the flag and other patriotic matters.” (Paskind dep., p. 8). In deference to these convictions, Paskind met with plaintiff and instituted certain procedures to accommodate her. During the course of that school year, Paskind permitted a “team teacher,” a student teacher and, in certain instances, parent volunteers to instruct the children on matters of patriotism. For various reasons, all of these methods proved infeasible. During this period, plaintiff refused to lead activities related to holidays like Columbus Day, Halloween, Thanksgiving and Christmas. At times, when no other aid was available, she allowed her five-year-old students to recite the pledge on their own. According to Paskind, the results of such a practice were “chaotic.” (Paskind dep., p. 69). Plaintiff’s teaching behavior failed in other respects. She overemphasized or ignored certain areas, failed to use toys provided and failed to prepare adequate lesson plans and was otherwise disorganized. During the school year, Paskind received complaints from parents concerning the fact" }, { "docid": "10823718", "title": "", "text": "is clear that no accommodation could be made without undue hardship). The only suggested accommodation, that of skipping over assignments involving women, because of the reasons asserted by Roadway, would impose more than a de minimis cost. Accordingly, the district court was correct in granting summary judgment. II. The district court did not err in denying Weber’s Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. Weber argues that the district court erred in refusing to reconsider its granting of summary judgment based upon newly discovered evidence that Roadway failed to produce. Yet like the district court, we are unpersuaded by Weber’s claim that he sought the documents earlier, but that Roadway withheld them. Furthermore, the district court correctly found that the “refuse-to-ride” letters at issue shed no new light on the questions addressed at summary judgment. It is within the district court’s discretion whether to reopen a case under Fed.R.Civ.Pro. 59(e). Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir.1993). There is no indication that the district court abused its discretion in denying the request for reconsideration. The district court correctly found that Weber’s motion to amend the summary judgment record was a transparent effort to avoid the adverse ruling. CONCLUSION This appeal arose from a Title VII claim of religious discrimination in employment by Weber, a trucker and Jehovah’s Witness who was dismissed because his religious beliefs prevent him from making long-haul overnight trips with women truckers. The district court did not err in granting Roadway’s Motion for Summary Judgment or in denying Weber’s Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. Accordingly, we AFFIRM the district court’s granting of summary judgment and its denial of Weber’s Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. . There is evidence that drivers are allowed to \"divorce” other drivers if they no longer wish to ride together. Similarly, a driver can submit a \"refuse-to-ride” letter when the driver does not want to be paired with another specific driver with whom he has previously ridden. Finally, the" }, { "docid": "1903543", "title": "", "text": "and gratitude. The letter further stated that plaintiff had the right to express her own views “in a moderate way within the purview of a given course of study and in keeping with the maturity level of the children being taught.” By an October 2, 1977 letter, plaintiff responded that due to her religious principles she would not comply with directives 1, 2, 3 and 5. Specifically, she stated compliance would “damage my spiritual relationship with God, Jehovah [and] that [it] would damage my conscience serving Him.” She stated that since the Bible proscribes her bowing down to any idol and that in her view the flag represented such an idol, she could not comply with the directive. She further stated that since she believed in the coming of God’s government over mankind, she would not, as a Jehovah’s Witness, commit herself patriotically to any existing government. She cited various biblical passages in support of her refusal to conduct holiday activities. Plaintiff pledged she would put forth extra effort in complying with directives 4, 6 and 7. On December 21, 1977 plaintiff was served with notice from defendant Hannon that inasmuch as she had not complied with the required curriculum, her service as a probationary teacher would be terminated on December 23. The letter said that all possibilities for alternative placement had been reviewed and there was no other position available in which she could be accommodated. Defendants never conducted any hearing prior to the discharge determination. Defendants have deferred taking action pending outcome of this suit. A number of consequences have resulted from plaintiff’s refusal to teach these matters. First grade teachers at the Field School had to instruct the children on subject matter they should have been taught by their kindergarten teacher. Parents and children have been upset. In one instance a child was reduced to tears because plaintiff refused to accept a Valentine’s Day gift. (Paskind dep., p. 72). The cognitive area of instruction was unduly emphasized to the detriment of the children’s affective or emotional development. In considering the merits of this suit, the court must" }, { "docid": "22663366", "title": "", "text": "to persecution states that “forced conscription or punishment for evasion of military duty generally does not constitute persecution on account of a protected ground.” Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir.2005) (emphasis added). Two sentences after that statement, however, Movsisian recognizes the exception to the general rule, noting that, in that case, the petitioner presented “no evidence that the Armenian government would target him for conscription or punishment on account of his religion or other protected ground.” Id. (citing Canas-Segovia, 970 F.2d at 601). Accordingly, Movsisian militates in favor of a finding of persecution where, as here, the petitioner’s testimony, coupled with ample supporting evidence in the administrative record, confirms that her refusal to submit to military service could be met with disproportionate punishment because her objection was premised on her beliefs as a Jehovah’s Witness. The IJ cites a denial by the Eritrean government that such discrimination occurs, but disregards specific confirmation in the same United States governmental publication containing that denial, the 2002 International Religious Freedom Report for Eritrea, that differential treatment with regard to refusal to participate in national service does occur. That publication states: Most members of Jehovah’s Witnesses have refused on religious grounds to participate in national service or to vote, which has led to widespread criticism that members of Jehovah’s Witnesses collectively were shirking their civic duty. Some Muslims also have objected to universal national service because of the requirement that women perform military duty. The Government does not excuse individuals who object to national service for religious reasons or reasons of conscience, nor does the Government allow alternative service. Although persons from other religious groups, including Muslims, reportedly have been punished in past years for failure to participate in national service, only members of Jehovah’s Witnesses have been subject to dismissal from the civil service, revocation their trading licenses, eviction from government-owned housing, and denial of passports, identity cards, and exit visas. However, there were no reports that Jehovah’s Witnesses who performed national service and participated in the national independence referendum were subject to discrimination. There is no indication that any" }, { "docid": "1626833", "title": "", "text": "district court did not err in granting Defendant summary judgment on this issue by the Fifth Circuit’s recent decision in Weber v. Roadway Express, Inc., 199 F.3d 270, 275 (5th Cir.2000). In Weber, the Fifth Circuit held that it was an undue hardship to require the employer, Roadway Express, to skip over a truck driver on a seniority board in order to accommodate one of its driver’s religious beliefs that going on a sleeper run with a female was wrong. Id. There, the plaintiff truck driver, a Jehovah’s witness, informed his employer, Roadway Express, that his religious beliefs prevented him from making sleeper runs with females other than his wife. Id. at 272. The sincerity of the plaintiffs religious belief appeared to be undisputed; however, the employer informed the plaintiff that “working with women was part of his job and that he would have to work with women or would not receive any driving assignment.” Id. The plaintiff filed suit claiming religious discrimination under Title VII, and the district court granted the employer summary judgment on the basis that the employer could not reasonably accommodate the plaintiffs religious belief without undue hardship. The plaintiff appealed and the Fifth Circuit affirmed. Id. at 275. In rejecting the plaintiffs proposed accommodation of “skipping over” the plaintiff when he would be paired with a female driver, the Fifth Circuit noted that this “skipping over” proposal may have had an adverse impact on the other drivers by sending one of them on a shorter — and therefore less profitable — run, as well as by providing the substitute driver with less rest and time off between runs. Weber, 199 F.3d at 274. Accordingly, the court held that “[t]he mere possibility of an adverse impact on co-workers as a result of ‘skipping over’ is sufficient to constitute an undue hardship.” Id. (citing Hardison, 432 U.S. at 81, 97 S.Ct. 2264). In support of its holding, the court analogized to Lee v. ABF Freight System, Inc., 22 F.3d 1019, 1023 (10th Cir.1994), wherein the Court of Appeals for the Tenth Circuit found that the “voluntary runaround”" }, { "docid": "5850307", "title": "", "text": "basis of his membership in a protected class (i.e., as a Jehovah’s Witness)); Palmer v. Board of Educ., 466 F.Supp. 600 (N.D.Ill.1979) (the activities of a kindergarten teacher Jehovah’s Witness in refusing to teach her students the pledge of allegiance and to participate in holiday activities and songs were not constitutionally protected); Kentucky Comm’n on Human Rights v. Lesco Manuf., 736 S.W.2d 361 (Ky.App.1987) (Secretary Jehovah’s Witness who refused to answer phone with “Merry Christmas” based upon religious beliefs was discriminated against based upon her religion). Defendants contend that Vélez fails to state a claim under Title VII based upon religious discrimination. More particularly, they argue that Vélez did not inform her employer of her religious beliefs, and she failed to explain how the wearing of a Santa Claus cap conflicts with her religious beliefs of not celebrating Christmas. Conversely, plaintiffs argue that they have met the prima facie requirements for religious discrimination, inasmuch as Vélez is a practicing Jehovah’s Witness, she indicated to Marroig that she was a Jehovah’s Witness and wearing the Santa Claus hat was contrary to her religious beliefs and that, as a result of her not wearing the hat, she was dismissed. Plaintiffs further contend that the defendants could have made a reasonable accommodation, inasmuch as there were other duties and positions available within the store that she could perform. Defendants argue that Vélez did not reasonably notify Marroig of her religious beliefs. They assert that Vélez lacks admissible evidence to establish that Marroig knew of Vélez’s religious beliefs and/or membership before the date of November 30, 1999. Defendants concede that it is arguable that employees Ada Marroig or Rosa Nieves’ knowledge of Vélez’s religious membership sustains that Marroig knew of her religious membership. They argue, however, that Vélez lacks competent evidence to link these persons’ knowledge to that of Marroig’s. First Circuit case law required that Vélez inform Progreso or bring to Progreso’s attention her religious beliefs, but makes no mention of “reasonable notice.” See Unión Independiente, 279 F.3d at 55. The record reflects that the defendants had knowledge of Vélez’s religious beliefs. Marroig" } ]

[ { "docid": "2315023", "title": "", "text": "we have found that the warrants had a probable cause foundation, the first criterion, lawful presence of the searching officers, has been met. Defendant concedes that the discovery was inadvertent, appellant’s brief at 11 n. 3, so the second criterion has been met. The question, therefore, is whether the evidentiary value of the firearms was immediately apparent to the searchers. We do not see how this can be seriously disputed. It is now recognized by us and other circuits that firearms are one of the tools of the trade of drug dealers. Guns, like glassine bags, scales and cutting equipment are an expected and usual accessory of the narcotics trade. See United States v. Green, 887 F.2d 25, 27 (1st Cir.1989); United States v. Hinds, 856 F.2d 438, 443 (1st Cir.1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied sub nom, Impemba v. United States, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). Any reasonably competent police officer who discovered firearms while searching for drugs would be immediately aware of their evidentiary significance. We hold that the plain view exception to the warrant specificity requirement applies to the seizure of the firearms. Because we have found that the seizure of the firearms and their admission into evidence was proper, we conclude that defendant suffered no prejudice from his trial attorney’s withdrawal of the motions to suppress, and thus, his ineffective assistance of counsel claim fails. Accordingly, we need not determine whether the attorney’s performance was deficient. Based on our reading of the record, however, we have no hesitancy in saying that in our opinion defendant’s trial attorney did a competent workmanlike job for defendant; his withdrawal of the motion to suppress was an informed acknowledgement of the pertinent law, not deficient representation. Affirmed. . One count was dismissed by the government at the start of the trial. . The first affidavit states: \"This informant has proven reliable in the past by supplying information resulting in the arrests of several people. These arrests were drug related.” The second affidavit states: \"This informant has proven reliable" } ]

[ { "docid": "408059", "title": "", "text": "officer from suspecting based on circumstantial evidence that Raymond was in Missouri nonetheless. There was probable cause to believe that Raymond possessed the firearm as a convicted felon, and the arresting officer did not violate Raymond’s Fourth Amendment rights. B. The Franklins assert that police officers unlawfully seized firearms during the search of Robert’s residence, because the warrant authorized only a search for “[e]vidence of drug trafficking.” Firearms, however, are tools of the drug trafficking trade, and officers with probable cause to search for drug trafficking evidence reasonably could have determined that firearms in proximity to drugs or drug paraphernalia were within the scope of the warrant. See United States v. Nichols, 344 F.3d 793, 798-99 (8th Cir.2003) (per curiam). The firearms, moreover, were in plain view within areas to which officers had lawful access, so whether or not the firearms came within the terms of the warrant, the officers permissibly could seize the guns based on probable cause that they were evidence of a crime. See Horton v. California, 496 U.S. 128, 142, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The district court properly granted summary judgment for the prosecutor defendants on this claim, because there was no evidence that they participated in the drafting, review, or execution of the search warrant. See Parrish, 594 F.3d at 1001. C. Robert Franklin also argues that the officers and prosecutors deprived him of property without due process of law by retaining his firearms without a post-deprivation hearing. The district court ruled that the authorities properly retained the guns as potential evidence in federal or state court proceedings, and that officers and prosecutors were at a minimum entitled to qualified immunity. The Columbia police officers retained the Vulcan .45 while unlawful possession of a weapon charges were pending against Raymond. After the charge was dismissed in April 2011, officers continued to retain the firearm pursuant to prosecutor Richard Hicks’s recommendation that the Vulcan .45 would be needed as evidence for refiling charges against Raymond. As to the other firearms, Officer Jones was advised that the guns may have been relevant evidence in" }, { "docid": "4253930", "title": "", "text": "of particularity. C. The Scope of the Seizure Russell and Davis also contend that the officers violated their rights by exceeding the scope of the warrant. In addition to those items specifically enumerated in the warrant, the officers seized DVDs, CDs, blank videotapes, and non-Nintendo brand video games. We conclude that this seizure, although broad, was constitutionally permissible. An officer executing a search warrant may seize: (i) items named in the warrant; and (ii) evidence that, although not described in the warrant, is subject to seizure under the plain view doctrine. Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir.1992). The plain view doctrine applies “if the officer has a legal right to be in the place from where he sees the object subject to seizure[,] a ‘lawful right of access to the object itself,’ and if the object’s incriminating nature is ‘immediately apparent.’ ” United States v. Cotnam, 88 F.3d 487, 495 (7th Cir.1996) (quoting United States v. Berkowitz, 927 F.2d 1376, 1388 (7th Cir.1991)). The incriminating nature of an object is “immediately apparent” if, under the circumstances, the officer has “probable cause to believe that the item is linked to criminal activity.” United States v. Bruce, 109 F.3d 323, 328 (7th Cir.1997). The media items not specified in the warrant were validly seized pursuant to this doctrine. The warrant gave the officers a legal right to enter plaintiffs’ house. See Horton v. California, 496 U.S. 128, 135-36, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Defendants discovered the property in question while searching those areas where they were likely to find the items expressly named in the warrant. Thus, the officers had a lawful right of access to the property. And under the circumstances, defendants had probable cause to believe that the items they seized were evidence of a crime. At the time the officers applied for the warrant, they had reasonable grounds to suspect that Russell and Davis were stealing hundreds of VHS movies and Nintendo N64 video games from Circus Video and selling these items online. The officers were justified in believing that incriminating evidence would be" }, { "docid": "3646497", "title": "", "text": "he had reason to examine the bag further. Brown counters that Officer Benitez’s testimony at the suppression hearing refutes the government’s plain view argument by showing that the incriminating character of the items in the bag was not immediately apparent. Pri- or to searching the bag, Officer Benitez could only identify “a shiny, chrome object;” a further search was necessary to confirm its incriminating character, and thus the plain view exception cannot apply. The plain view doctrine permits a warrantless seizure where the officer has a legal right to be in the place from where he sees the object subject to the seizure and “a lawful right of access to the object itself,” and if “the object’s incriminating nature is immediately apparent.” Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990); United States v. Willis, 37 F.3d 313, 316 (7th Cir.1994) (same standard applied to seizure of evidence in car); United States v. Berkowitz, 927 F.2d 1376, 1388 (7th Cir.1991). Regarding the last requirement, the Supreme Court has stated that where “the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., if ‘its incriminating character [is not] immediately apparent,’ [citation omitted] — the plain view doctrine cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). Brown properly does not contest Officer Benitez’s legal right to look into his car from the street, for “[t]here is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.” Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (plurality opinion) (citations omitted). Rather, as noted, Brown challenges the government’s position that the gun’s incriminating nature was immediately apparent. If Brown is correct, Officer Benitez did not have a lawful right to open the bag and access the gun. To resolve this matter it is useful to parse" }, { "docid": "9731469", "title": "", "text": "even if the warrant is supported by probable cause, the guns seized during the search should be suppressed because they were not authorized by the search warrant. Although the only firearm covered by the search warrant was a .45 handgun, the agents also seized a rifle, a shotgun, and a machine gun. The Government responds that the rifle, shotgun, and machine gun are admissible because they were in plain view to the officers executing the search warrant. Unless an exception applies, a warrant is generally required to permit law enforcement officers to search a place or seize an item. United States v. McLevain, 310 F.3d 434, 438 (6th Cir.2002). The Government concedes that the warrant in this case did not authorize the search for or seizure of a shotgun, rifle, or machine gun. See Resp. at 9. The plain view doctrine is an exception to the warrant requirement. Horton v. California, 496 U.S. 128, 134, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). “It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.” Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Four factors must be satisfied for the plain view doctrine to apply: (1) the object must be in plain view; (2) the officer must be legally present in the place from which the object can be plainly seen; (3) the object’s incriminating nature must be' immediately apparent; and (4) the officer must have a right of access to the object. United States v. Garcia, 496 F.3d 495, 508 (2007). Lijewski contends that the third factor— the immediately-apparent incriminating nature of the guns—was not satisfied when the officers seized the firearms from his business. Regarding the third factor, the Sixth Circuit has explained that “[bjecause the plain view doctrine supplants the need for a particularized warrant, the ‘immediately apparent’ requirement is necessary to prevent officers from using the plain view doctrine as a means to extend a particularized search authorized by the Fourth Amendment principles into an unlawful exploratory search.” Garcia, 496 F.3d at 510." }, { "docid": "11428007", "title": "", "text": "that it could be inferred that it was once full of ammunition. The district court denied the motion to suppress, reasoning that the box was relevant to show that Davis was dealing drugs. Davis argues that the incriminating character of an empty ammunition box is not immediately evident and is no more incriminating than a cigar box used to store children’s pencils. The government must establish probable cause for a seizure to invoke the “plain view” exception to the warrant requirement. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L,Ed.2d 347 (1987). This Court has previously held that weapons are “tools of the trade” of drug dealers, and the simultaneous possession of weapons and drugs supports an inference that the suspect is dealing drugs. United States v. Rush, 890 F.2d 45, 49 (7th Cir.1989). Moreover, as the government correctly points out, the ammunition box was not discovered in a vacuum. Coupled with the seized drugs', weapons, and photographs, the ammunition box is probative of the use of weapons in connection with drug trafficking in violation of federal law. The ammunition box, unlike a cigar box, is probative of weapons possession and drug dealing. The empty ammunition box raises an inference that the contents had been used in a firearm. The district judge correctly stated that “you can’t have one without the other.” Evidence that Davis at one time possessed .380 caliber ammunition is incriminating in the same way that his possession of the weapons was incriminating. In addition, Davis at the time of the search was a convicted felon, and thus, state and federal law prohibited him from possessing a firearm.’ The detective who executed the search warrant was the saíne detective who had arrested Davis in 1985. Therefore, the detective had probable cause to believe that Davis had violated federal and state law by possessing a firearm, and. the ammunition box was probative of this violation. Therefore, this Court affirms the district court’s denial of Davis’s motion to suppress the ammunition box. III. SUFFICIENCY OF THE EVIDENCE A defendant who appeals a verdict based on" }, { "docid": "12630815", "title": "", "text": "present tense and therefore implied regular ongoing transactions); United States v. Schaefer, 87 F.3d 562, 568 (1st Cir.1996) (“[I]t is common ground that drug conspiracies tend to be ongoing operations, rendering timely information that might, in other contexts, be regarded as stale.”). Owens’s complaint that the affidavit failed to establish any nexus between the firearms and 26 Parsons Avenue similarly fails. The affidavit recited that Owens was wanted for murder, had “numerous firearms,” and rented a house at 26 Parsons Avenue. Based on this information, it was reasonable for the executing officers to believe that firearms would be found at 26 Parsons Avenue. Cf. United States v. Procopio, 88 F.3d 21, 28 (1st Cir.) (nexus between evidence of crime and address to be searched sufficiently established where affidavit recited that suspect lived at that address), cert. denied, — U.S. -, 117 S.Ct. 620, 136 L.Ed.2d 543 (1996). b. The Scope of the Search Owens concedes that if the police were lawfully present at 26 Parsons Avenue, as we have just concluded, then the firearms and ammunition were properly seized within the scope of the search warrant, and the drugs and paraphernalia were properly seized pursuant to the plain view doctrine. He contends, however, that the police officers exceeded the proper scope of the search when they seized various personal documents which were not in plain view. A plain view seizure is lawful if (1) the seizing officer has a prior justification for being in a position to see the item in plain view and (2) the evidentiary value of the item is immediately apparent. See Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). According to Owens, the officers improperly seized various personal documents because the evidentiary value of these documents was not “immediately apparent.” In particular, Owens contests the seizure of the following documents, which were introduced as evidence at trial: address books, telephone bills, papers containing names and numbers, money order receipts, documents regarding gun purchases by Andrea Frith Jones, a photograph of himself with a pile of money, and a birth certificate" }, { "docid": "22244768", "title": "", "text": "Any and all 'information and/or data stored in the form of magnetic or electronic coding on computer media or on media capable of being read by a computer or with the aid of computer-related equipment. This media includes floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes, laser disks, video cassettes, and other media which is capable of storing magnetic coding. J.A. 58. The search team seized four pliers, an analog multi-tester, four drill bits, red-handled wire cutters, a drill, three plaid shirts, electric light bulbs, bottles of bug spray, insect repellant, newspapers, marijuana, a military ammunition box containing assorted drugs, marijuana drug paraphernalia, and other assorted paperwork. According to the warrant, the search team only had the authority to seize “tools” such as the four pliers, the analog multi-tester, the four drill bits, the red-handled wire cutters, and the drill. The issue, therefore, is whether the remaining items fall within recognized exceptions to warrantless seizures. Although neither party directly addresses this issue, blanket suppression certainly cannot stand on items properly seized pursuant to consent. See United States v. Hylton, 349 F.3d 781, 785 (4th Cir.2003). Moreover, officers may properly seize articles of incriminating character that they come across while performing a search in a given area pursuant to a valid search warrant. Horton v. California, 496 U.S. 128, 135, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In such “plain view” situations, the police have an original justification for intruding on a person’s private property, and can extend that justification to those items whose incriminating nature is immediately apparent. Id. at 136, 110 S.Ct. 2301. Specifically, officers may seize items unauthorized by a warrant upon three showings: First, the seizing officer [must] be lawfully present at the place from which the evidence can be plainly viewed. Second, the officer must have a lawful right of access to the object itself. And [third], the object’s incriminating character must ... be immediately apparent. United States v. Wells, 98 F.3d 808, 809-10 (4th Cir.1996) (internal citations omitted); see also United States v. Legg, 18 F.3d 240, 242 (4th Cir.1994). With respect to" }, { "docid": "4321602", "title": "", "text": "1272-73. The determination of whether the officers had probable cause to believe that the items seized were illegal, unlawful, or associated with criminal activity is objective, but we apply it to the “actual and/or perceived belief of the law enforcement officer as he ... engages in search and seizure.” United States v. Prim, 698 F.2d 972, 975 (9th Cir.1983). This standard does not require the officers to know that the item seized is illegal. See United States v. Cecil, 457 F.2d 1178, 1180 (8th Cir.1972) (noting that, in a case involving plain view seizure of a sawed-off shotgun, “[t]he observation of the gun gave probable cause for the reasonable belief that a crime, the possession of a- contraband firearm, was being committed[,]” and that there is “no rule which requires an officer to have knowledge of all the elements of the crime when he views an article which reasonably appears to be contraband”) (citation omitted); see also Horton, 496 U.S. at 130-33, 110 S.Ct. 2301 (applying the plain view exception where the officers noticed weapons while executing a search warrant for the proceeds of a robbery; the officers knew that weapons had been used in the armed robbery and seized them accordingly). We find that the “immediately apparent” prong is satisfied in this case; the officers had probable cause to believe that the rifles and ammunition were illegal. While checking for a body or an injured person, the officers first saw what they reasonably believed to be an armor-piercing bullet in the living room. Then, when the officers opened the closet, they saw a magazine of 9 mm armor-piercing ammunition on top of a small storage container and the barrels of two AR-15 assault rifles protruding from behind the container. When the weapons were placed on the bed, the officers noted that one of the guns had a grenade launcher with an obliterated serial number. The officers reasonably believed that these items, found amidst the trappings of severe drug abuse, were illegal. It is illegal to possess armor-piercing ammunition (18 U.S.C. § 929), to possess an unregistered grenade launcher (26" }, { "docid": "6000764", "title": "", "text": "rights. [P]robable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Here, Ms. Wattree gave consent to a warrantless search. The gun was discovered during that warrantless search and was seized without a warrant. . [A]n essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be “immediately apparent.” Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.1999) (an officer can seize contraband without a warrant when ... “the object’s incriminating character was immediately apparent — i.e., the officer had probable cause to believe the object was contraband or evidence of a crime”) (quoting United States v. Soussi, 29 F.3d 565, 570 (10th Cir.1994)). Mr. Wattree essentially challenges the last requirement, whether the officers had probable cause that the gun was evidence of a crime when they did not first establish whether his prior felony conviction prohibited him from possessing a gun. “Probable cause is measured against an objective standard. It is evaluated ‘in relation to the circumstances as they would have appeared to prudent, cautious and trained police officers.’ The ‘subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive.” United States v. Davis, 197 F.3d 1048, 1051 (10th Cir.1999) (citing and quoting Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Beck v." }, { "docid": "11428006", "title": "", "text": "the defendant made an incriminating statement). B. The Empty Ammunition Box On July 24, 1989, five months following Parker’s murder, Chicago police officers obtained a search warrant for Davis’s apartment based on information that cocaine had been purchased from Davis at the apartment. During the search, the officers seized various drugs, drug paraphernalia, and weapons. The officers also seized an empty .380 caliber ammunition box. Prior to trial, Davis sought the suppression of the ammunition box on the grounds that the officers lacked probable cause to believe the box was evidence of any crime. The ammunition box was not of the same caliber as the weapons seized during the search. The box was found empty in the same room with several weapons and with pictures of Davis holding various weapons. It was specifically located in a bedroom dresser drawer containing various papers and clothing. The government argued that the seizure of the box fell under the plain view doctrine because the box would be readily recognized as an incriminating “tool of the drug trade” in that it could be inferred that it was once full of ammunition. The district court denied the motion to suppress, reasoning that the box was relevant to show that Davis was dealing drugs. Davis argues that the incriminating character of an empty ammunition box is not immediately evident and is no more incriminating than a cigar box used to store children’s pencils. The government must establish probable cause for a seizure to invoke the “plain view” exception to the warrant requirement. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L,Ed.2d 347 (1987). This Court has previously held that weapons are “tools of the trade” of drug dealers, and the simultaneous possession of weapons and drugs supports an inference that the suspect is dealing drugs. United States v. Rush, 890 F.2d 45, 49 (7th Cir.1989). Moreover, as the government correctly points out, the ammunition box was not discovered in a vacuum. Coupled with the seized drugs', weapons, and photographs, the ammunition box is probative of the use of weapons in connection with" }, { "docid": "4321601", "title": "", "text": "and the incriminatory nature of the evidence must be immediately apparent.” Roe v. Sherry, 91 F.3d 1270, 1272 (9th Cir.1996) (citations omitted); see also Horton v. California, 496 U.S. 128, 135-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). The first requirement is satisfied here because, as we conclude above, the warrantless entry was justified by the emergency doctrine, thereby permitting the officers to lawfully enter unit F-202. See Cervantes, 219 F.3d at 888-89. The second requirement of the plain view exception, that the incriminating nature of the evidence be “immediately apparent,” focuses on whether the officers had “probable cause to believe they were associated with criminal activity.” Horton, 496 U.S. at 131 n. 1, 110 S.Ct. 2301; see also Hicks, 480 U.S. at 326-27, 107 S.Ct. 1149; Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (“A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”) (citation omitted); Sherry, 91 F.3d at 1272-73. The determination of whether the officers had probable cause to believe that the items seized were illegal, unlawful, or associated with criminal activity is objective, but we apply it to the “actual and/or perceived belief of the law enforcement officer as he ... engages in search and seizure.” United States v. Prim, 698 F.2d 972, 975 (9th Cir.1983). This standard does not require the officers to know that the item seized is illegal. See United States v. Cecil, 457 F.2d 1178, 1180 (8th Cir.1972) (noting that, in a case involving plain view seizure of a sawed-off shotgun, “[t]he observation of the gun gave probable cause for the reasonable belief that a crime, the possession of a- contraband firearm, was being committed[,]” and that there is “no rule which requires an officer to have knowledge of all the elements of the crime when he views an article which reasonably appears to be contraband”) (citation omitted); see also Horton, 496 U.S. at 130-33, 110 S.Ct. 2301 (applying the plain view exception where the officers noticed weapons" }, { "docid": "21596759", "title": "", "text": "of such documents because plain view “may not be used to provide a secondary backup justification for items seized pursuant to an invalid part of the warrant.” Order of November 17, 1992 at 13. We are mindful of the “grave dangers [to privacy interests] inherent in executing a warrant authorizing a search and seizure of a person’s papers ... [insofar as] some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andresen, 427 U.S. at 482 n. 11, 96 S.Ct. at 2749 n. 11. Furthermore, “ ‘the plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2026, 29 L.Ed.2d 564 (1971) (plurality opinion). Accordingly, to prevent the plain view doctrine from eviscerating Fourth Amendment protections, the courts have required the government to satisfy a three-prong test: (1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object’s incriminating character was immediately apparent — i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); United States v. Dixon, 1 F.3d 1080, 1084 (10th Cir.1993). Along with numerous other circuits, we have upheld the plain view seizure of documents even when the police only learned of the documents’ incriminating nature by perusing them during a lawful search for other objects. See, e.g., United States v. Gentry, 642 F.2d 385, 387 (10th Cir.1981) (upholding plain view seizure of documents relating to the manufacture of methamphetamine sulfate in the course of a lawful search for drugs); United States v. Barnes, 909 F.2d 1059, 1070 (7th Cir.1990) (given the immediately apparent incriminating nature of the contents of a spiral notebook found in plain view, the officers were justified" }, { "docid": "5935618", "title": "", "text": "Horton, 496 U.S. at 136-38, 110 S.Ct. at 2308 (quoting Coolidge, 403 U.S. at 491, 91 S.Ct. at 2038) (emphasis added). Without the “immediately apparent” requirement, police officers unauthorized to exercise discretion now would be free to exercise discretion and seize items in plain view even if the items’ incriminating nature were not immediately apparent. See Horton, 496 U.S. at 136-38, 110 S.Ct. at 2308; Coolidge, 403 U.S. at 491, 91 S.Ct., at 2038. Thus, I disagree with the majority that police officers should be able to use their discretion in seizing items in plain view and later “winnow the wheat from the chaff.” Maj.Op. at 302. Rather, as stated earlier, I understand the plain view doctrine to mean that law enforcement officers may only seize those items that almost “jump out” at them and immediately exhibit an incriminating character when inadvertently discovered in plain view. Horton, 496 U.S. at 134-36, 110 S.Ct. at 2307; Payton v. New York, 445 U.S. 573, 588, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); see Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987) (Sca-lia, J.). For example, if the law enforcement officers have a search warrant authorizing the seizure of stolen merchandise, fruits of a crime, i.e. a Motorola television from a home, but upon executing the warrant they discover it is a Zenith T.Y. with serial and/or identification numbers corresponding to those described in the warrant and it immediately appears to be connected with the criminal activity detailed in the warrant, the seizure of the Zenith television would be permissible. See, e.g., United States v. Jefferson, 714 F.2d 689, 694 (7th Cir.1983) (where the furs, jewelry and firearms seized under the plain view exception possessed an immediately incriminating character as fruits of the illegal drug dealing operation); cf. Hicks, 480 U.S. at 324, 107 S.Ct. at 1152 (where the police seized two sets of expensive stereo equipment in a squalid apartment after verifying they were stolen from the equipment’s serial numbers). On the one hand, the majority recognizes that there are limits to the police" }, { "docid": "23553518", "title": "", "text": "gold chain; one brown wallet; a bank bag; a night scope; a black address book; a cellular phone; a key chain and assorted keys; and two briefcases containing assorted documents. Any argument Le might make that the TPD officers exceeded the scope of the warrant by seizing the firearms and ammunition is fatally flawed. The guns and ammunition were discovered pursuant to a valid warrant-based search for methamphetamine, and were in the plain view of the searching officers. Also, Officer Com-stock testified that he and the other TPD officers were aware that it was a federal offense for a user of drugs to possess a firearm. See Tr. of Hearing on Motions, September 11, 1997, at 56-57; see also 18 U.S.C. § 922(g)(3); United States v. Smith, 899 F.2d 116 (1st Cir.1990) (Breyer, C.J.) (upholding a plain view seizure of guns by state officers because the state officers were aware that the possession of the guns by the defendant was a violation of federal law). Thus, the guns and the ammunition were properly seized, because they were in plain view of officers legally at the residence, and it was immediately apparent to the officers that the firearms were evidence of a crime. Horton, 496 U.S. at 136-37, 110 S.Ct. 2301. Le argues, however, that the seizure of the pellet gun, the gun parts, the pill bottles, the gold chain, the holsters, and several other items shows that the TPD officers flagrantly disregarded the scope of the warrant. While some of these items may arguably have been improperly seized, the officers did not exhibit a “flagrant disregard” for the terms of the warrant. Medlin, 842 F.2d at 1199. The remedjr for any improper seizure here would be suppression of the items improperly seized, not blanket suppression of all items seized, including those lawfully taken. We need not remand for a specific determination of which items were lawfully seized, because we have determined that the methamphetamine and firearms, the only items taken as a result of the execution of the state warrant for which Le was prosecuted, were lawfully seized. B. The" }, { "docid": "13111768", "title": "", "text": "years of supervised release. II. The threshold issue in this case is whether Officer Mathis’s search of the locked gun case and seizure of its contents violated Banks’s Fourth Amendment rights. Banks filed a motion to suppress the gun, arguing Mathis violated his Fourth Amendment rights when he broke open and searched the gun case without a warrant. The district court denied the motion, holding that no Fourth Amendment search occurred because Banks had no reasonable expectation of privacy in the contents of what was plainly a gun case. Banks appeals the denial of his motion to suppress. We review “findings of historical fact only for clear error and ... give due weight to inferences drawn from those facts by resident judges and local law enforcement officers,” but the ultimate conclusion of whether an exception to the warrant clause exists we review de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A. Police may seize, without a warrant, an item that is 1) in plain view 2) when it is observed from a lawful vantage point, 3) where the incriminating character of the item is immediately apparent. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The first requirement, that the objects be in plain view, “is often considered an exception to the general rule that warrant-less searches are presumptively unreasonable....” Id. at 133-34, 110 S.Ct. 2301. The third requirement, that the incriminating character of an item be immediately apparent, is satisfied when police have “probable cause to associate the property with criminal activity.” United States v. Raines, 243 F.3d 419, 422 (8th Cir.2001) (internal quotation marks omitted). Probable cause is required to justify the seizure of an item that police observe in plain view. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). Ultimately, the standard by which a warrantless search and seizure is reviewed under the Fourth Amendment is reasonableness. Id First, we consider whether police should have obtained a warrant before they opened the Phoenix Arms container. Observing objects" }, { "docid": "9760498", "title": "", "text": "view. We agree. In general, “any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant.” United States v. Rogers, 521 F.3d 5, 9-10 (1st Cir.2008) (quoting United States v. Gray, 814 F.2d 49, 51 (1st Cir.1987)) (internal quotation mark omitted). The warrant in this case permitted agents to search for items as small as grains of powder. Thus, the agents had a right to search the tackle box. While lawfully searching the tackle box, agents saw what they believed to be contraband and evidence of a crime — ammunition and a cigarette rolling device. A law enforcement agent may, without a warrant, seize an object in plain view so long as he or she has (1) lawfully reached the vantage point from which he sees the object, (2) has a right of access to the object itself, and (3) has probable cause to support his seizure of that object. United States v. Paneto, 661 F.3d 709, 713 (1st Cir.2011). In this case, the agents satisfied the first requirement — lawfully reaching the vantage point from which they saw the ammunition and rolling device — because they were in the house pursuant to a warrant supported by probable cause. Second, as discussed, the warrant permitted agents to search for items as small as grains of powder. Thus, the agents had a right to access and open the tackle box. Once inside the tackle box— recognizing that both Jake and Stephen Crooker were unable to lawfully possess ammunition — the officers had probable cause to seize the ammunition, satisfying the third plain view requirement. Moreover, the rolling device, which agents believed was used to roll marijuana cigarettes, was in plain view within the tackle box and its value as evidence of illegal activity was immediately apparent. Thus, the ammunition and rolling device were properly seized pursuant to the plain view doctrine. With regard to Crooker’s alternative argument, we need not decide whether the agents acted reasonably" }, { "docid": "18828596", "title": "", "text": "that the car and the cocaine fell within the plain view exception to the warrant requirement. Thus, we conclude that the district court did not err in admitting the evidence found in the vehicle. The initial seizure of the vehicle was justified under the plain view exception to the warrant requirement. Under the plain view exception, the incriminating character of the object must be readily apparent, the officers must have had lawful access to the object, and it must have been in plain view. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991). In the instant case, the DEA agents were lawfully present in the parking lot where the vehicle was seized, they had probable cause to believe that the vehicle had been used in drug transactions, and the vehicle was in plain view. As such the warrantless seizure was justified. Cf. G.M. Leasing Corp. v. United States, 429 U.S. 338, 351-52, 97 S.Ct. 619, 628, 50 L.Ed.2d 530 (1977) (holding that warrantless seizure of automobile pursuant to tax levy from public area did not involve invasion of privacy). The discovery of the cocaine was also justified under the plain view exception to the warrant requirement. Because the vehicle was lawfully seized, so were all of its contents. When the DEA decided not to proceed with the forfeiture of the car, but to continue forfeiture proceedings against the cellular phone, it was necessary to remove the phone from the car. The technician was lawfully extracting the phone, which the police had probable cause to believe had been used in drug transactions, and in doing so, came across the cocaine in plain view. Accordingly, the discovery of the cocaine did not violate the defendant’s Fourth Amendment rights. Cf. Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967) (upholding search of automobile following seizure pursuant to forfeiture proceedings where “reason for and nature of the custody may constitutionally justify the search”). In sum, we conclude that the trial court did" }, { "docid": "22244769", "title": "", "text": "consent. See United States v. Hylton, 349 F.3d 781, 785 (4th Cir.2003). Moreover, officers may properly seize articles of incriminating character that they come across while performing a search in a given area pursuant to a valid search warrant. Horton v. California, 496 U.S. 128, 135, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In such “plain view” situations, the police have an original justification for intruding on a person’s private property, and can extend that justification to those items whose incriminating nature is immediately apparent. Id. at 136, 110 S.Ct. 2301. Specifically, officers may seize items unauthorized by a warrant upon three showings: First, the seizing officer [must] be lawfully present at the place from which the evidence can be plainly viewed. Second, the officer must have a lawful right of access to the object itself. And [third], the object’s incriminating character must ... be immediately apparent. United States v. Wells, 98 F.3d 808, 809-10 (4th Cir.1996) (internal citations omitted); see also United States v. Legg, 18 F.3d 240, 242 (4th Cir.1994). With respect to the computer, plaid shirts, and light bulbs, we note that Uzen-ski has not contested the district court’s findings that (1) he gave his general consent to search the apartment without unequivocally revoking it; and (2) the officers properly seized (a) the computer pursuant to his own consent, and (b) the plaid shirts and light bulbs pursuant to the plain view exception. We see no reason to disturb the district court’s findings, and in any event, Uzenski has waived those issues. Since Uzenski gave his general consent to search his entire apartment, the other items — such as the marijuana and drug paraphernalia, which are incriminating on their face-fall within the plain view exception. With respect to the military ammunition box, Agent Fanelly testified at the motion to suppress hearing that the box contained items with attached police stickers, indicating that it had been stolen from an evidence locker. With respect to the bottles of bug spray, insect repellant, and newspapers, the officers mistakenly believed in good faith that these items could incriminate Uzenski. See United" }, { "docid": "21596760", "title": "", "text": "from which to view the object seized in plain view; (2) the object’s incriminating character was immediately apparent — i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); United States v. Dixon, 1 F.3d 1080, 1084 (10th Cir.1993). Along with numerous other circuits, we have upheld the plain view seizure of documents even when the police only learned of the documents’ incriminating nature by perusing them during a lawful search for other objects. See, e.g., United States v. Gentry, 642 F.2d 385, 387 (10th Cir.1981) (upholding plain view seizure of documents relating to the manufacture of methamphetamine sulfate in the course of a lawful search for drugs); United States v. Barnes, 909 F.2d 1059, 1070 (7th Cir.1990) (given the immediately apparent incriminating nature of the contents of a spiral notebook found in plain view, the officers were justified in seizing it during the execution of a warrant to seize cocaine because the cocaine could have been stored in the notebook); Crouch et al. v. United States, 454 U.S. 952, 955, 102 S.Ct. 491, 492, 70 L.Ed.2d 259 (1981) (White, J., dissenting from denial of petition for writ of certiorari) (citing opinions from the Second, Sixth, Eighth, and Ninth Circuits where a plain-view seizure of documents was upheld even though the incriminating nature of the documents was not apparent until they were read). Here, the district court rejected the government’s reliance on the plain view doctrine without considering whether the government met the three-prong test under Horton. In so doing, the court added a new gloss to the plain view test — namely, that the officer may not use the plain view doctrine to justify a seizure of items that were initially seized pursuant to an unconstitutional portion of an otherwise valid warrant. We are sympathetic to the court’s concern, and the admonition by the Coolidge plurality, that the plain view doctrine not be" }, { "docid": "3729989", "title": "", "text": "447, 451 (5th Cir.2006) (finding a protective sweep reasonable where police observed a firearm inside the front door of a house and heard noises near the back door of the house indicating that other persons might be present). B Rodriguez also contends that the seizure of the shotgun was not permissible under the plain-view doctrine because it was not immediately apparent that the shotgun was illegal. The district court found that the officers “would have been derelict in their duty, having once been informed that there was a weapon on the premises, ... if they had not taken steps to secure that firearm before they completed their investigation.” While the Fourth Amendment generally prohibits warrantless seizures, see Buie, 494 U.S. at 331, 110 S.Ct. 1093, the “plain view” exception allows police to seize items where: (1) the police lawfully entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was “immediately apparent;” and (4) the police had a lawful right of access to the item. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In this case, the only element in question is whether the incriminating nature of the shotgun was “immediately apparent.” “The incriminating nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’ to believe that the item is either evidence of a crime or contraband. Probable cause does not require certainty.” United States v. Waldrop, 404 F.3d 365, 369 (5th Cir.2005) (internal quotation marks omitted). However, if an officer has only a “reasonable suspicion,” then he does not have probable cause. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). “If ... the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object,” then its incriminating nature is not immediately apparent and “the plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The shotgun was illegal because it was" } ]

[ { "docid": "22744507", "title": "", "text": "the prop- ' erty as such and to measure a legitimate tax upon the privileges involved in the use of such property. In Home Ins. Co. v. New York, 134 U. S. 594, a tax was sustained upon the right or privilege of the Home Insurance Company to be a corporation, and to do business within the State in a corporate capacity, the tax being measured by the extent of the dividends of the corporation in the current year upon the capital stock. Although a very large amount, nearly two of three millions of capital stock was invested in bonds of the United States, expressly exempted from taxation by a statute- of the United States, the tax was sustained as a mode of measurement of a privilege tax which it was within the lawful authority of the State to impose. Mr. Justice Field, who delivered the opinion of the court, reviewed the previous cases in this court, holding that the State could not tax or burden the operation of the Constitution and of laws enacted by the Congress to carry into execution the powers vested in the General Government. Yielding full assent to those cases, Mr. Justice Field said of the tax then under consideration: “It is not a tax in terms upon the capital stock of the-company, nor upon any bonds of the United States composing a part of that stock. The statute designates it a tax upon the ‘ corporate franchise or business’ of the company, and reference is only made to its capital stock and dividends for the purpose of determining the amount of the tax to be exacted each year.” In that case, in the course of the opinion, previous cases of this court were cited, with approval, Society for Savings v. Coite, 6 Wall. 594; Provident Institution v. Massachusetts, 6 Wall. 611. -In:the Coite Case a privilege tax upon the total amount of deposits in a savings- bank was sustained, although $500,000 of the deposits had been invested in securities of the United States, -and declared by act of Congress to be exempt from taxation" } ]

[ { "docid": "21837993", "title": "", "text": "will become void upon payment or performance according to the stipulated terms;” and “income” as “the money or other form of payment that one receives, usu, periodically, from employment, business, investments, royalties, gifts, and the like”). Transactions are not assets or property. See Black’s Law Dictionary (8th ed. 2004) (defining “transaction” as “the act or an instance of conducting business or other dealings, esp., the formation, performance, or discharge of a contract”). Therefore, an exemption for transactions cannot be read into the plain language of the statutes. Nor can transactions be considered an element of any of the specified exempt assets listed in the statutes. In Pittman v. Home Owners’ Loan Corp. of Wash., D.C., 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11 (1939), the U.S. Supreme Court reviewed whether a tax on recording deeds was preempted by a federal law exempting the Home Owners’ Loan Corporation from state and local taxation. The Home Owners’ Loan Act included a tax exemption very similar to those at issue in this case: the “Corporation, its franchise, capital, reserves and surplus, and its loans and income shall be exempt from all state or municipal taxes.” Id. at 31 & n.3, 60 S.Ct. 15 (quoting 12 U.S.C. § 1463(c)). The Court focused on the term “loans” and determined that the use of that term was meant to shield from taxation the entire process of lending, including mortgages given to secure loans. Id. Because a mortgage and its recordation ai’e “indispensable elements in the lending operations authorized by Congress,” the Court concluded the federal exemption preempted the recording tax, regardless of who recorded the deed and thus was taxed. Id. at 32, 60 S.Ct. 15. For Pittman to apply, we would need to find that transferring property is an “indispensable element” of one of the exempt assets listed in the exemption provisions. Transferring property is not an element of the entities’ franchise, capital, reserves, surplus, loans, or income. The Fannie Mae provision also exempts the corporation’s mortgages. Buying property often involves a mortgage, but the sale of property here was not an element of" }, { "docid": "22429972", "title": "", "text": "constituent corporations, it has been held that the question of the dissolution of such corporations depended upon the language of the statute under which the consolidation took place — the presumption in each case being that each of the two lines of road will be held respectively to the privileges and burdens originally attaching thereto. Tomlinson v. Branch, 15 Wall. 460. If, upon the one hand, the identity of the prior corporations is preserved, an exemption from taxation, which one of them possessed, falls to that portion of the new corporation to which, under its former name, it had been attached. If, upon the other hand, the consolidation worked a dissolution of the prior corporations, their former privileges and franchises also ceased to exist. Thus, in the earliest of these cases, Philadelphia &c. Railroad v. Maryland, 10 How. 376, it was held that the Baltimore and Port Deposit Railroad Company, whose charter contained no exemption from taxation, did not acquire such exemption by consolidation with the Delaware and Maryland Railroad Company, whose charter exempted the road from taxation, “ except upon that portion of.the permanent and fixed works which might be in the State of Maryland.” A general rule was laid down in this case to which this court has steadily adhered, that the. taxing power of the State should never be presumed to be relinquished, unless the intention to do so be declared in clear and unambiguous terms. This case was subsequently reaffirmed in the Delaware Railroad Tax, 18 Wall. 206. In Tomlinson v. Branch, 15 Wall. 460, it was held that when a railroad company, to which, by its charter, an exemption from taxation was granted for a limited period, was by act of the legislature “ merged ” in another company, -which thereby became invested with all its rights, property, and privileges, the exemption applied to the property with its limitation of time, and although the company in wrhich it was merged had been granted a perpetual exemption from taxation in its charter, this perpetual exemption would not be extended to property so acquired, without express words," }, { "docid": "22364857", "title": "", "text": "granted to them.. After all, the .true question .’in these .cases is, whether a contract in express terms between the State and a corporation, to exempt its property and franchises from taxation, shall, by. construction, extend to and exe’mpt 'the property of individual stockholders, — property which, for the purposes of: taxation, is entirely different from that of- the corporation. • I think there is no ground for such a construction ; none for any such implication. If, .however, I; am mistaken, it is certainly true that such a construction is not necessary. The words of the charter granting the exemption are fully satisfied by confining their operation to the corporations, themselves; and I do not feel at liberty to give them a broader significance, in view of the'settled rule I have noticed, that a. State’s right of taxation will not be held to have been surrendered unless the intention to surrender is manifested in words too plain to be mistaken. H ad the legislature intended to extend the exemption beyond the companies themselves, it would have been easy to place the intent beyond doubt, by simply saying the tax should be in lieu of all other taxation of the company or its stockholders. But nothing like this, or equivalent to it, is found in the charter. I find nothing in Gordon v. The Appeal Tax Court, 3 How. 133, so much relied upon by the plaintiffs in error, necessarily inconsistent with what I have said. That case has not been well understood. The circumstances were peculiar, and the decision rendered should be considered with 'reference to the peculiar facts which appeared in it. What was, in fact, decided we had occasion'to observe in People v. The Commissioners, 4 Wall. 244, where Mr. Justice Nelson directed attention to -the circumstances that more or .less controlled the judgment. For these reasons, which I have, 'not time to elaborate, I think the judgments of the Supreme Court Of Tennessee should be affirmed." }, { "docid": "22119948", "title": "", "text": "Court has reiterated that contracts of tax exemption are “to be read narrowly and strictly,” Hale v. State Board, 302 U. S. 95, 109. See also Pacific Co. v. Johnson, 285 U. S. 480, 491; Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619, 627. Not only is the Corporation unable to point to an unmistakable exemption, but the contract itself contains an express provision permitting the deduction of taxes from the gross receipts. Its language is broad. It refers to “all taxes ... of every description (whether on physical property, stock or securities, corporate or other franchises, or otherwise) assessed or which may hereafter be assessed against the Lessee in connection with . . . the operation of the . . . Railroads.” The taxes under discussion clearly come within its terms. It is alleged that at the time of the execution of the contracts, and prior to the passage of the state enabling acts, the tax power of the City was confined to special assessments for public improvements, and ad valorem taxes on real estate and special franchises issued by the City. The Corporation insists that it was contemplated that no other type of tax would be assessed, and that it was not necessary to make provision for exemption since the Corporation was merely accepting the tax burden common to all owners of property. It is urged that the contract be interpreted from this point of view, and the provision limited to taxes of the type which the City could have imposed in 1913. There is no reason to limit the ordinary meaning of words used in a contract by men prepared to invest under its terms. “ . . . a business proposition involving the outlay of very large sums cannot be and is not taken by the parties concerned according to offhand impressions; it is scrutinized phrase by phrase and word by word.” New York v. Sohmer, 237 U. S. 276, 284; cf. Ohio Ins. Co. v. Debolt, 16 How. 416, 435. Where the intention was to prevent the imposition of new taxes," }, { "docid": "22081277", "title": "", "text": "right or privilege given by the State to two or more persons of being a corporation, that is, of doing business in a corporate capacity, and not the privilege or franchise which, when incorporated, the company may exercise. The right or privilege to be a corporation, or to do business as such body, is one generally deemed of value to the corporators, or it would not be sought in such numbers as at present. It is a right or privilege, by which several individuals may unite themselves under a common name and act as a single person, with a succession of members, without dissolution or suspension of business, and with a limited individual liability. The granting of such right or privilege rests entirely in the discretion of the State, and, of course, when granted, may be accompanied with such conditions as its legislature may judge most befitting to its interests and policy. It may require, as a condition of the grant of the franchise, and also of its continued exercise, that the corporation pay a specific sum to the State each year or month, or a specific portion of its gross receipts, or of the profits of its business, or a sum to be ascertained in any convenient mode which it may prescribe. The validity of the tax can in no \\Vay be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year, which it will exact for the franchise. No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privilege it bestows. It may well seek in this way to increase its revenue to the extent to which it has been cut off by exemption of other property from taxation. As its revenues to meet its expenses are lessened in one direction, it may look to any other property as sources of revenue, which is not exempt from taxation. . . . The tax in the present case would not be affected if the nature" }, { "docid": "8129015", "title": "", "text": "1,000 acres. - In answer to the bill the State contended that the thousand acres would be exempt from taxation so long only as they were substantially owned by the university, but that when it gave a lease of the kind described in the case before us it ceased during the term of the lease to be the real and substantial owner of the land so leased, which by the lease was taken out of the exemption granted by the statute, and was from that time taxable- against the university. The Supreme Court, however,-held that the assessment made was void because the property,' the land owned by the university, was exempt from taxation so long as it belonged to that corporation, and the making of the leases did not permit the property to be taxed against the university. This is a different proposition from the one asserted by the complainant, and is not authority for its contention that the assessment cannot be made against the lessee in his own name for his particular interest in the land while the university continues to own the fee. It is plain that the state court has not construed the statute of 1858 as a contract that the interest of the lessee in the land granted to him for a term of years by the university cannot be assessed or taxed against him because of the exemption in question. Counsel for the appellees, placing the Skidmore case aside for the moment, assert that when this exemption was granted leasehold interests were only assessable against the owner of the fee as part of the whole estate, and it was therefore a part of the estate exempted from taxation by the charter. -We think this is not a correct construction of the contract of exemption. As long as different interests may exist in the same land, we think it plain that an exemption granted to the owner of the land in fee does not extend to an exemption from taxation of ah interest in the same land, granted by the owner of the fee to another" }, { "docid": "22744494", "title": "", "text": "and to employ all necessary agencies for legitimate purposes of state government, are not proper subjects of the taxing power of Congress. But it cannot be admitted that franchises granted by a State are necessarily exempt from taxation; for franchises are property, often very valuable and productive property; and when not conferred for the purpose of giving effect to some reserved power of a State, seem to be as properly objects of taxation as any other property. “But in the case before us the object of taxation is not the franchise of the bank, but property created, or contracts made and issued under the franchise, or power to issue bank bills. A railroad company, in the exercise of its corporate franchises, issues freight receipts, bills of lading, and passenger tickets; and it cannot be doubted that the organization of railroads is quite as important to the State as the organization of banks. But it will hardly be questioned that these contracts of the company are objects of taxation within the powers of Congress, and not exempted by any relation to the State which granted the charter of the raiiioad. And' it seems difficult to distinguish the taxation of notes issued for circulation from the taxation of these railroad contracts. Both descriptions of contracts are means of profit to the corporations which issue them; and both, as we think, may properly be made contributory to the public revenue.” (pp. 547, 548) . It is true that the decision in the Veazie Bank Case was also placed, in a measure, upon the authority of the United States to control the circulating medium of the country, but the force of the reasoning, which we have quoted, has riot been deriied or departed from. . In Thomas v. United States, 192 U. S. 363, a Federal tax on the transfer of corporate shares in state corporations was upheld as a tax upon business transacted in the exercise of privileges afforded by the state laws in respect to corporations. In Nicol v. Ames, 173 U. S. 509, a Federal tax was sustained upon the enjoyment" }, { "docid": "22336113", "title": "", "text": "an annual tax of one half of one per cent upon each share of the capital stock, which shall be in lieu of all other taxes. The exemption is not, in our judgment, greater in its scope than the subject of the tax. Eecognizing, as we do, that there is a different property in that which is described as capital stock from that which is described as corporate property other than capital stock, and remembering the necessity there is for a clear expression of the intention to exempt before the exemption will be granted, we must hold that the surplus has not been granted exemption by the clause contained in the charter under discussion. The very name of surplus implies a difference. There is capital stock and there is a surplus over, above and beyond the capital stock, which surplus is the property of the bank until it is divided among stockholders. The case of Bank v. Tennessee, 104 U. S. 493, does not hold to the contrary of this doctrine. This question was not therein discussed or decided. The question which was decided related only to the taxation of real property not used by the bank in its business, and it was held liable to taxation. The case is no authority for the proposition contended for here, namely, that the whole surplus of this.bank is exempt from taxation. No individual shareholder has any legal right to claim any portion of this surplus; until divided by the board of directors it remains the property of the corporation itself, and in the sense in which the words “ capital stock ” are used in the exemption clause’the surplus does not form any part thereof. It is said that the purpose of incorporating; a bank is to enable the. institution to accumulate profits and to make dividends out of them, and that the dividends cannot be made until the profits have been accumulated, and that under this ruling profits would come under the description of surplus to be taxed before distribution in a dividend. It is true that dividends cannot rightfully be" }, { "docid": "22181584", "title": "", "text": "exempted its property from taxation; and the court held that the charter was a contract betAveen the State and the corporators, that the property given for charitable uses specified in it should, so long as it was applied to those uses, be exempted from taxation. This decision accords with the view we have taken in this case of the operation of the exemption -clause. The case of Wilmington Railroad v. Reid, 13 Wall. 264, only asserts the doctrine that it is competent for the legislature to exempt property from taxation,' and that the exemption, when made in a charter of a corporation, constitutes a contract, the question there being whether subsequent legislation impaired the obligation of such contract. In Trask v. Maguire, 18 Wall. 891, the act of Missouri, under which a sale of the St. Louis.and Iron Mountain Railroad was made by commissioners of the State, provided that the purchasers should have all the rights, franchises, privileges, and immunities enjoyed by the defaulting company. The new company was, therefore, necessarily held to have acquired the immunity from taxation which the original company had possessed, if it were competent for the legislature at the time under the new constitution, to confer this privilege. It was decided, however, that the legislature was prohibited by the constitution from conferring the privilege, and that the law, passed under the ordinance adopted with the new constitution, providing for a sale of the franchises of a defaulting railroad company with its road, did not require immunity from taxation to be embraced within them; the language being construed to refer to such franchises as were essential to the operation of the road sold, and without which the ownership of the road would be comparatively valueless, — a view which accords with what we have said in this case. Immunity of particular property from taxation is a privilege which may sometimes be transferred under that designation, as held in Humphrey v. Pegues, 16 Wall. 244. All that we now decide is, that such immunity is not itself a franchise of a railroad corporation which passes as such" }, { "docid": "22364856", "title": "", "text": "both from all other taxation.' Such a construction is, however, directly in conflict with'the’ ruling in The Delaware Railroad Tax, supra, and with the expressed déclarátipn that the- company or.- institution shall, pay the tax to the State, which was to be in lieu of other' taxation. Besides, the reference to each sha’-e of .capital stock subscribed is easily accounted for, without holding that the shareholder, as wéll as the companies, were intended to-be exempted. The amount of capital stock authorized for each company was fixed by its charter, and. divided into shares. . It Was quite possible that the whole stock authórized might not he subscribed. In vie-w of this, the companies were required to pay a tax, not upon their entire authorized capital, but to'the extent of the shares subscribed. If siich was the intent df the legislature, reference to the shares was necessary, .and it .raises -no implication that .the tax imposed-was designed to be. for the individual interest .of the shareholders in the corporations, and that the exemption from further taxation-was granted to them.. After all, the .true question .’in these .cases is, whether a contract in express terms between the State and a corporation, to exempt its property and franchises from taxation, shall, by. construction, extend to and exe’mpt 'the property of individual stockholders, — property which, for the purposes of: taxation, is entirely different from that of- the corporation. • I think there is no ground for such a construction ; none for any such implication. If, .however, I; am mistaken, it is certainly true that such a construction is not necessary. The words of the charter granting the exemption are fully satisfied by confining their operation to the corporations, themselves; and I do not feel at liberty to give them a broader significance, in view of the'settled rule I have noticed, that a. State’s right of taxation will not be held to have been surrendered unless the intention to surrender is manifested in words too plain to be mistaken. H ad the legislature intended to extend the exemption beyond the companies themselves, it" }, { "docid": "8129014", "title": "", "text": "that we are to judge the matter. Upon the question of the proper construction of the exemption clause in the charter, the case of the University of the South v. Skidmore, 87 Tennessee (3 Pickle), 155, is cited, and it is urged that within that case no tax can be assessed against the lessees of this property , within the 1,000 acres. While in such a case as this we form our own judgment as to the existence and, construction of the alleged contract, and are not concluded by the construction which the state court has placed on the statute that forms such'contract, yet we.give to that construction the most respectful consideration and it will in general be followed, unless it seems to be plainly erroneous. Looking at the Skidmore case, we find that it does not uphold the contention maintained by the complainant. In that case the university filed a bill against Skidmore, trustee of Franklin County, to enjoin him from- assessing for taxation against the university the property belonging to it within the 1,000 acres. - In answer to the bill the State contended that the thousand acres would be exempt from taxation so long only as they were substantially owned by the university, but that when it gave a lease of the kind described in the case before us it ceased during the term of the lease to be the real and substantial owner of the land so leased, which by the lease was taken out of the exemption granted by the statute, and was from that time taxable- against the university. The Supreme Court, however,-held that the assessment made was void because the property,' the land owned by the university, was exempt from taxation so long as it belonged to that corporation, and the making of the leases did not permit the property to be taxed against the university. This is a different proposition from the one asserted by the complainant, and is not authority for its contention that the assessment cannot be made against the lessee in his own name for his particular interest in" }, { "docid": "22626148", "title": "", "text": "for its claimed exemption is its corporate charter, granted by the State of Washington. Upon the premises that respondent’s Washington charter was a written contract, and that the Washington laws prohibiting dividend payments were by operation of law a part of that' contract, the court below concluded that the taxpayer had satisfied the requirements of §• 2fi (c) (1). We must therefore decide whether § 26 (c) (1) authorized a credit or deduction to corporations prohibited by state law from distributing dividends. And respondent strongly urges that the Act, if construed to deny such credit, is unconstitutional. First. It is material that we are dealing here with a generally imposed surtax upon the undistributed net income of corporations, and that respondent’s claim is for a credit in the nature of a specially permitted deduction. It has been said many times that provisions granting special tax exemptions are to be strictly' construed. Measured by this sound standard it. is probably not necessary tó go beyond the plain words of § 26 (c) (1) in search of the legislative meaning. Certainly, at first blush, few would suppose that when Congress granted a special exemption to corporations whose dividend payments were prohibited by executed written contracts, it thereby intended to grant an exemption to corporations whose dividend payments were prohibited by state law.' The natural impression conveyed by the words “written contract executed by the corporation” is that an explicit understanding has been reached, reduced to writing, signed and delivered. True, obligations pot set out at length in a written contract may be incorporated by specific reference, or even by implication. But Congress indicated that any exempted prohibition against dividend payments must be expressly written in the executed contract. It did this by adding a precautionary clause that the granted credit can only result from a provision which “expressly deals with the payment of dividends.” That the language used in § 26 (c) (I) does not authorize a credit for statutorily prohibited dividends is further supported by a consideration of § 26 (c) (2). By this section, a credit is allowed to corporations" }, { "docid": "22119949", "title": "", "text": "valorem taxes on real estate and special franchises issued by the City. The Corporation insists that it was contemplated that no other type of tax would be assessed, and that it was not necessary to make provision for exemption since the Corporation was merely accepting the tax burden common to all owners of property. It is urged that the contract be interpreted from this point of view, and the provision limited to taxes of the type which the City could have imposed in 1913. There is no reason to limit the ordinary meaning of words used in a contract by men prepared to invest under its terms. “ . . . a business proposition involving the outlay of very large sums cannot be and is not taken by the parties concerned according to offhand impressions; it is scrutinized phrase by phrase and word by word.” New York v. Sohmer, 237 U. S. 276, 284; cf. Ohio Ins. Co. v. Debolt, 16 How. 416, 435. Where the intention was to prevent the imposition of new taxes, adequate language was available. The court below adverted to its opinion in Brooklyn Bus Corp. v. City of New York, 274 N. Y. 140; 8 N. E. 2d 309, where the contract entitled the corporation to a broader tax exemption because it provided that “any new form of tax or additional charge that may be imposed by any ordinance of the city or resolution of the Board upon or in respect of the franchise . . . shall be deducted from the compensation payable to the City hereunder ...” A similar suggestion that the contract be limited to the taxes known at the time of its making was urged upon us, and discarded, in J. W. Perry Co. v. Norfolk, 220 U. S. 472. Under a lease made by Norfolk in 1792, when Norfolk was a borough without power to tax, the lessee agreed to pay, in addition to rent, “the public taxes which shall become due on said land.” The lessee sought to enjoin the collection of taxes in 1906 by the City of" }, { "docid": "22364853", "title": "", "text": "share of its capital stock, was held to be not a tax upon the shares of the individual stockholders, but a tax on the corporation, determined by a rule which, though arbitrary, was yet approximately just. So, in Van Allen v. The Assessors, 3 id. 573, this court, said a tax on shares of stock is not a tax on the capital of a bank, and that the shares are a distinct, independent interest or property held by the stockholder, and, like any other property that may belong to him, subject to taxation. If, nowi these two acknowledged doctrines áre allowed to ‘have their just effect upon the decision of these cases, I cannot see how the stockholders in the several corporations whose charters we are requested to construe can claim an exemption from- taxation'-upon their individual shares of stock. The exemption clause in the charters of two of the companies is: “ Said institution shall pay to the State an annual tax of one-half of, one per cent on each share of capital stock subscribed, which shall be ■ in lieu of all other taxes.” The exemption clause in two other of the charters is in substantially the same words, except that the word “ company ” is substituted for the word “ institution.” The clause iri the fifth charter reads thus: “ That there shall be levied a State tax of one-half of one per cent upon the amount of capital • stock actually paid in, to be collected in the same way and at the same time as other taxes are by law collected, which shall be in lieu of all other taxes and assessments.” ' . /■ I agree with the majority of the court that there.is no substantial difference in the extent of the exemption offered, in these several charters, though there is some difference in their phraseology. But I think that the benefit of the exemption is in each case for the corporation. It was not intended for the individual stockholder. The legislature' were dealing with the proposed corporations. The corporate power granted and" }, { "docid": "22744506", "title": "", "text": "condition of doing local business within the State of Kansas. This, court held, looking through forms and reaching the substance of the thing, that the tax thus imposed was in reality a tax upon ■ the right to do interstate business within the State, and an undertaking to tax property beyond the' limits of the State; that whatever the declared purpose, when reasonably interpreted, the necessary operation and effect of the act in question was to burden interstate commerce and to tax property beyond the jurisdiction of the State, and it was therefore invalid. There is nothing in these cases contrarjq as we shall have occasion to see, to the former rulings of this court which hold that where a tax is lawfully imposed upon the • exercise of privileges within the taxing power of the State or Nation, the measure of such tax may be the income from the property of the corporation, although a part of such income is derived from property in itself non-taxablei The distinction lies between the attempt to tax the prop- ' erty as such and to measure a legitimate tax upon the privileges involved in the use of such property. In Home Ins. Co. v. New York, 134 U. S. 594, a tax was sustained upon the right or privilege of the Home Insurance Company to be a corporation, and to do business within the State in a corporate capacity, the tax being measured by the extent of the dividends of the corporation in the current year upon the capital stock. Although a very large amount, nearly two of three millions of capital stock was invested in bonds of the United States, expressly exempted from taxation by a statute- of the United States, the tax was sustained as a mode of measurement of a privilege tax which it was within the lawful authority of the State to impose. Mr. Justice Field, who delivered the opinion of the court, reviewed the previous cases in this court, holding that the State could not tax or burden the operation of the Constitution and of laws enacted" }, { "docid": "22081292", "title": "", "text": "“ shall be exempt from taxation in any form by or under state, municipal or local authority ; ” and, second, that the tax in question is unconstitutional, because impairing and burdening the borrowing power of the United States. But if the first proposition is sound and decisive of the question in this case, then it must follow that the cases in which this court has held that, in assessing a tax upon corporate franchises, the amount of such a tax may be based upon the entire property or capital possessed by the corporation even when composed in whole or in part of United States bonds, must be overruled. Plainly in those cases, as in this, there was taxation in a form, and in them as in this the amount of the tax was reached by including in the assessment United States bonds. So that we return to the authorities, by which it has been established that a tax upon a corporate franchise, or upon the privilege of taking under the statutes of wills and of descents, is a tax not upon United States bonds if they happen to compose a part of the capital of a corporation or a part of the property of a decedent, but upon rights and privileges created and regulated by the State. The second proposition relied on, namely, that to permit taxation of the character we are considering would operate as a burden upon the borrowing power of the United States, cannot be so readily disposed of. Still, we think, some observations can be made which will show that the mischief, which it is claimed will follow if such statutes be sustained as valid, is by no means so great or important as supposed. And here, again, it is obvious that to affirm the second proposition will require an overruling of our previous cases. For, on principle, if a tax on inheritances, composed in whole or in part of Federal securities, would, by deterring individuals from investing therein, and, by thus lessening the demand for such securities, be regarded as therefore unlawful, it must" }, { "docid": "23438787", "title": "", "text": "as a place of business.” The bank had no express authority to invest its capital in real property not required for that use. And it is to be presumed that the exemption,, from other, than the designated tax was in consideration that the capital would be employed for its legitimate purposes. It certainly would not be pretended that the corporation, by turning its whole capital into real property and engaging in réal-estate business, could then, by force of the charter, escape liability to taxation for it under the general laws. But if thé exemption could.-not.be carried to that extent, it is • difficult ■ to fix any limit to the amount of real property which, it may hold thus exempt, unless we take that prescribed by the charter. In otir judgment, the limited exemption cannot be extended to property used beyond the actual wants of the corporation in, carrying out the purposes of its creation. As well observed' by the Supreme Court of the State, the contract of exemption, beyond the extent prescribed, ceased when taxable property w.as held for any other purpose. It is true that the capital stock of a corporation’ may in a general sense be said to be all the property in which the capital ¿s . invested, so that an exemption of the capital stock, without other words of limitation, may operate to exempt all the property of the corporation. Railroad Companies v. Graines, 97 U. S. 697. But where the purposes for which a cornoration may* hold-property- is specified in connection with the. exemption, the-limitation of taxation designated must'be held to apply-only to-property acquired fór -such purposes. This we -consider-’to be the general doctrine- established by the numerous cases cited by counsel. The case of State v. Commissioners of Mansfield (22 N. J. L. 510), decided by the Supreme. Court of New Jersey, is a leading one. There it appeared that ■the'charter of the Camden and Amboy Railroad and Transportation Company, after reserving certain imposts, declared that-“no-other tax or impost shall be levied or assessed upon the said company.” The charter conferred upon the" }, { "docid": "22081278", "title": "", "text": "specific sum to the State each year or month, or a specific portion of its gross receipts, or of the profits of its business, or a sum to be ascertained in any convenient mode which it may prescribe. The validity of the tax can in no \\Vay be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year, which it will exact for the franchise. No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privilege it bestows. It may well seek in this way to increase its revenue to the extent to which it has been cut off by exemption of other property from taxation. As its revenues to meet its expenses are lessened in one direction, it may look to any other property as sources of revenue, which is not exempt from taxation. . . . The tax in the present case would not be affected if the nature of the property in which the whole capital stock is invested were changed, and put into real property or bonds of New York, or of other States. From the very nature of the tax, being laid upon a franchise given by the State, and revocable at pleasure, it cannot be affected in any way by the character of the property in which its capital stock is invested. The powmr of the State over the corporate franchise and the conditions upon which it shall be exercised is as ample and plenary in the one case as in the other.” And, after citing and commenting upon the previous cases from Connecticut and Massachusetts, the court said : “In this case we hold as well upon general principles as upon the authority of the first two cases cited from 6 Wallace, that the tax for which the suit is brought is not a. tax upon the capital stock or property of the company, but upon its corporate franchise, and is not therefore subject to the objection stated by" }, { "docid": "22429986", "title": "", "text": "or immunity. See also Picard v. Tennessee &c. Railroad, 130 U. S. 637. Upon the other hand, it was held in Tennessee v. Whitworth, 117 U. S. 139, that the right 'to have shares in its capital stock exempted from taxation within the State is conferred upon a railroad corporation by state statutes granting to it “ all the rights, power's, and privileges ” conferred upon another corporation named, if the latter corporation possesses by law such right of exemption, citing in support of this principle a number of prior cases. See also Wilmington & Weldon Railroad v. Alsbrook, 146 U. S. 279, 297. But the decisive answer to this objection is that the legislature had no power, in 1869, to extend.to a new corporation created by the consolidation an exemption- contained in an act passed in 1857, before the constitution was adopted, and hence that, under the terms of this act, we cannot hold that immunity from taxation passed as a franchise or privilege to the consolidated corporation. The construction claimed by the defendant would be directly in the teeth of the constitutional provision that no property shall be exempted from taxation. While, as heretofore observed, an exemption from taxation contained in a charter previously_granted could not be taken away by this constitutional^ provision without the impairment of the obligation of a contract, it doubtless applies to all corporations thereafter formed either by original charter or by the consolidation of prior corporations under the act of 1869. (2) The question of estoppel remains to be considered. In 1873, the county of Scotland brought suit in the Circuit Court of Scotlahd County against the Missouri, Iowa and Nebraska Railway Company to recover the taxes of 1872 upon the-property in question in this case, and was defeated, the court, holding it to be exempt under section 9 of the charter of the Alexandria and Bloomfield Railway' Company. It was conceded in that case that the Missouri, Iowa and Nebraska Railway Company had succeeded to all the privileges and liabilities of the Alexandria and Bloomfield Company. It appeared that in the seventh" }, { "docid": "22763343", "title": "", "text": "taxation on its property and its activities as the government itself; and the exemption extends to the salaries of its officers. In the exertion of the powers conferred upon it by the Constitution, the United States may, in its discretion, erect corporations for private gain and employ them as its instrumentalities. No tax can be laid upon their franchises or operations, but their local property is subject to non-discriminating state taxation. In contrast, the bestowal of benefits, rights, privileges, or immunities or the imposition of duties by federal law upon a natural person or a corporation does not convert him or it into a federal agency exempt from uniform state excise or property taxes. Where the United States, by contract, constitutes a person or corporation its agent to fulfil a governmental obligation, a state tax upon such an agent is forbidden if it falls upon the avails of the operation in which the government has an interest, or is an excise or privilege tax upon the agent’s operations; but a general and uniform state property tax which falls only upon the agent’s property used in the performance of the contract is valid. The opinion of the court adverts to these distinctions, but, since admittedly the appellee is not an agency or instrumentality of the United States, a discussion of taxes laid upon the operations as contrasted with those imposed upon the property of such an agency or instrumentality is beside the point upon which the case turns. I agree that the challenged tax is not, in terms, laid upon the contract of the government, but I am of opinion that it directly burdens and impedes the operations of the United States within the reason and scope of the principle of immunity and according to the application of that principle in numerous decisions of the court. If this be so, the facts that the exaction is not in terms upon the contract with the government, that the appellee is an independent contractor, that the tax is non-discriminatory, or that it is not excessive in amount cannot serve to exculpate the statute" } ]

[ { "docid": "1121643", "title": "", "text": "B.R. 210 (E.D.Pa.1987). The other principle is that the automatic stay is a most fundamental and significant protection to a debtor, see In re Clark, 69 B.R. 885, 889-90 (Bankr.E.D.Pa.1987), relief from which can be accorded to an unsecured creditor only when it is established that the “balance of hardships” tips in the creditor's favor. See In re Ziets, 79 B.R. 222, 226-27 (Bankr.E.D.Pa.1987); In re Cherry, 78 B.R. 65, 72-74 (Bankr.E.D.Pa.1987); In re Ronald Perlstein Enterprises, Inc., 70 B.R. 1005, 1010 (Bankr.E.D.Pa.1987), appeal dismissed, C.A. No. 87-2364 (E.D.Pa. June 25, 1987); and In re Stranahan Gear Co., 67 B.R. 834, 837-38 (Bankr.E.D.Pa.1986). One of the considerations in this balance is conserving the resources and energies of the Debtor which would be otherwise expended in litigating claims in other forums. See Perlstein, supra, 70 B.R. at 1009; and Stranahan Gear, supra, 67 B.R. at 838. Although the Debtor will be forced to litigate its claims against the Movants in other forums, this factor is nevertheless of some significance here, because the Counterclaims asserted by Harrington in particular seem to us to be somewhat overblown and possibly calculated, as the Debtors’ counsel argued, to browbeat IEM and its counsel and thus discourage them from prosecuting what may be just claims. We note that B.Rule 7013 alters the requirement set forth in F.R.Civ.P. 13(a) that claims arising out of the same transaction or occurrence are compulsary counterclaims, stating that “a party sued by a trustee need not state as a counterclaim any claim that the party has against the debtor, the debtor’s property, or the estate, unless the claim arose after the entry of an order for relief.” Therefore, as to those proposed Counterclaims which could be asserted as pre-petition claims against the Debtors, F.R.Civ.P. 13(a) expressly does not apply. We observe that the Movants' lone case authority, Zweygardt, supra, only consider whether certain Counterclaims are subject to dismissal on a summary judgment motion and does not address the issue of the impact of the automatic stay on the litigation of counterclaims against a debtor, and thus is of little pertinence to" } ]

[ { "docid": "2858208", "title": "", "text": "Ciccone’s claims against the Debtor-estate arose pre-petition. In applying Federal Rule of Bankruptcy Procedure 7013, as in Beard, we observe that a creditor is not required to raise prepetition claims against the debtor as counterclaims. Rather, Cic-cone could and should have raised his claims under the claims process in the SIPA case or the pertinent related Chapter 7 cases. We recognize that the claims bar date in all of these cases has now run against Ciccone, and he can no longer raise the claims articulated in his Counterclaim through the claims process in either the SIPA case or the related Chapter 7 cases. His assertion of this Counterclaim may violate the automatic stay and may for that reason his Counterclaim may be stricken. See Creative Conservation, supra; slip op. at *1; and In re International Endoscope Manufacturers, Inc., 79 B.R. 620, 621-22 (Bankr.E.D.Pa.1987). Clearly, a creditor cannot hope to circumvent a bar date by raising claims subject to the bar date in a subsequent adversary proceeding. See In re FRG, Inc., 121 B.R. 710, 714 (Bankr.E.D.Pa.1990). However, we find that a mere attempt to invoke this court’s equitable “claims resolution” process through assertion of a non-compulsory counterclaim, whether successful or not, is a sufficient act on the part of a creditor to eliminate its right to a jury trial, because no such right exists in that process. Cf. Commodity Future Trading Comm’n v. Schor, 478 U.S. 833, 848-50, 106 S.Ct. 3245, 3255-56, 92 L.Ed.2d 675 (1986) (filing of a counterclaim in an administrative forum waives the right to a jury trial of the substance of the claim and counterclaim). D. CONCLUSION On the basis of the foregoing analyses, this court must deny Ciccone’s request for a jury trial. A trial of this entire proceeding will therefore be conducted before this court on September 9, 1993. ORDER AND NOW, this 27th day of July, 1993, upon consideration of the Briefs of the Plaintiff-Trustee and Defendant F. EM-MET CICCONE (“Ciccone”) filed pursuant to our Order of July 7, 1993, addressing the issue of whether Ciccone is entitled to a jury trial of" }, { "docid": "2858207", "title": "", "text": "that only a creditor’s voluntary act of asserting a non-compulsory counterclaim should waive a right to a jury trial in bankruptcy court. However, the reasoning of Travellers Int’l and Glen Eagle Square is more closely attuned to the reasoning of Allied Companies, suggesting that a creditor’s mere act of filing a counterclaim, whether compulsory or not and whether voluntarily or involuntarily, places the creditor in the public rights arena where a jury trial right is eliminated. Fortunately, we need not resolve this conflict to decide the issue before us. For, while Ciccone clearly would have no right to a jury trial under the Allied Companies approach, he also has waived his right to a jury trial under the approach utilized in Concept Clubs, Bayless, and Data Compass. We find that Ciccone has waived his right to a jury trial, even under this latter analysis, because his Counterclaim seeks affirmative relief against the Debt- or/Trustee. Similarly, Ciccone is not entitled to a jury trial under the reasoning set forth in Beard because it is clear that Ciccone’s claims against the Debtor-estate arose pre-petition. In applying Federal Rule of Bankruptcy Procedure 7013, as in Beard, we observe that a creditor is not required to raise prepetition claims against the debtor as counterclaims. Rather, Cic-cone could and should have raised his claims under the claims process in the SIPA case or the pertinent related Chapter 7 cases. We recognize that the claims bar date in all of these cases has now run against Ciccone, and he can no longer raise the claims articulated in his Counterclaim through the claims process in either the SIPA case or the related Chapter 7 cases. His assertion of this Counterclaim may violate the automatic stay and may for that reason his Counterclaim may be stricken. See Creative Conservation, supra; slip op. at *1; and In re International Endoscope Manufacturers, Inc., 79 B.R. 620, 621-22 (Bankr.E.D.Pa.1987). Clearly, a creditor cannot hope to circumvent a bar date by raising claims subject to the bar date in a subsequent adversary proceeding. See In re FRG, Inc., 121 B.R. 710, 714" }, { "docid": "13581563", "title": "", "text": "In re Marshland Dev., Inc., 129 B.R. 626, 630, 21 B.C.D. 1482, 1484 (Bankr.N.D.Cal.1991) (debtors not entitled to jury trial in removed proceeding in which they were defendants because such a proceeding is “the functional equivalent of a claims objection proceeding”); In re Lion Country Safari, Inc. California, 124 B.R. 566, 571-72 (Bankr.C.D.Cal.1991) (debtor waives jury trial by filing a compulsory cross-claim); In re Malkove & Womack, Inc., 122 B.R. 444 (Bankr.N.D.Ala.1990) (debtor has no right to a jury trial of a counterclaim); and In re Oggi Int’l Foods, Inc., Oggi Int’l Foods, Inc. v. Hibernation, Bankr.No. 89-11683F, Adv. No. 90-0087F (Bankr.E.D.Pa. May 1, 1990) (debtor’s choosing to file a proceeding in bankruptcy court waives its right to a jury trial in action to collect pre-petition accounts receivable). The instant matter is clearer than such cases as Bayless, supra; and Lion Country, supra, where the counterclaims filed by the party which demanded a jury trial were compulsory counterclaims. It does not appear that MW’s counterclaims against the Debtor are compulsory. The attempt to assert these Counterclaims may be void, in light of the presence of the automatic stay, and the resolution of these matters should probably be relegated to the claims process in the Debtor’s bankruptcy case. See In re Sciortino, 114 B.R. 423, 426-27 (Bankr.E.D.Pa.1990). However, by no stretch of the imagination was it compulsory for MW to make claims against the Bank in this Proceeding. The Bank, like the subcontractors also brought into this Proceeding by MW, was joined in the Proceeding in the course of MW’s apparent attempt to bring together all or most parties and matters at issue relating to the construction of the Debtor’s shopping center in this bankruptcy court. Having voluntarily chosen to attempt to expand this court’s jurisdiction over matters surrounding the construction project, and, in particular, using this Proceeding as a vehicle to make claims against the Bank, it appears hypocritical for MW to argue that it is entitled to a jury trial as to part of the Proceeding. Since certain portions of the Proceeding appear to be non-core related claims, see" }, { "docid": "11587016", "title": "", "text": "Cir.1993); N.I.S. Corp. v. Hallahan (In re Hallahan), 936 F.2d 1496, 1505 (7th Cir.1991). As the Seventh Circuit reasoned, if creditors lose a Seventh Amendment jury trial right by filing a claim, then “debtors who initially choose to invoke the bankruptcy court’s jurisdiction to seek protection from their creditors cannot be endowed with any stronger right.” Hallahan, 936 F.2d at 1505; cf., Germain v. Conn. Nat’l Bank, 988 F.2d 1323, 1330 (2d Cir.1993) (construing Hallahan, on remand from Supreme Court). In this instance, Hickman filed the bankruptcy case to restructure his debtor-creditor relationship with, among others, Hana. The particular relationship with Hana involves both Hana’s claim against Hickman and Hickman’s counterclaim against Hana. To the extent that the counterclaim could lead to affirmative relief, it is, as noted, property of the estate controlled by the trustee as to which Hickman has no authority to bind the trustee. He could, however, raise it defensively in the same manner as one may be permitted to assert a time-barred claim defensively, even though he could obtain no affirmative relief. If he were to do so, however, Lan-genkamp teaches that he is not entitled to trial by jury on his counterclaim. Nor would such a defense strategy impair the rights of the trustee to obtain an affirmative recovery in a separate action. The trustee would not be bound by an outcome adverse to Hickman so long as he does not become party to the action or agree to be bound. Restatement (Seoond) of Judgments §§ 27-29, 34 & 40. In sum, by the act of filing the voluntary chapter 7 case, Hickman invoked the equitable jurisdiction of the bankruptcy court to restructure his relations with his creditors and thereby agreed to litigate the adversary proceeding filed by Hana in the bankruptcy court that was addressed to her claim against him, and all counterclaims, in equitable proceedings in which the Seventh Amendment does not apply. II A chapter 7 bankruptcy case may be dismissed “only for cause.” 11 U.S.C. § 707(a). In the end, the question is whether there was § 707(a) “cause” to dismiss" }, { "docid": "2858206", "title": "", "text": "jury trial even when the creditor purported to expressly reserve its right to a jury trial on its claim form. Despite the creditor’s attempt to avoid this result, the court held that the filing of a claim necessarily resulted in a relinquishment of the creditor’s right to a jury trial. Also, we note that this court, in In re Glen Eagle Square, Inc., 132 B.R. 106, 111-13 (Bankr.E.D.Pa.), aff'd, 132 B.R. 115 (E.D.Pa.1991), held that a creditor’s filing of a proof of claim at any time, even after the commencement of a proceeding in which it sought a jury trial, precluded the creditor from obtaining a jury trial. In so holding, we criticized the decision in In re New York City Shoes, Inc., 122 B.R. 668, 672-73 (E.D.Pa.1990), for failing to consider that a creditor’s invocation of the claims process may irrevocably place its disputes with the debtor into the arena of public rights. We believe that the decision in Beard is consistent with the reasoning of Concept Clubs, Bayless, and Data Compass in suggesting that only a creditor’s voluntary act of asserting a non-compulsory counterclaim should waive a right to a jury trial in bankruptcy court. However, the reasoning of Travellers Int’l and Glen Eagle Square is more closely attuned to the reasoning of Allied Companies, suggesting that a creditor’s mere act of filing a counterclaim, whether compulsory or not and whether voluntarily or involuntarily, places the creditor in the public rights arena where a jury trial right is eliminated. Fortunately, we need not resolve this conflict to decide the issue before us. For, while Ciccone clearly would have no right to a jury trial under the Allied Companies approach, he also has waived his right to a jury trial under the approach utilized in Concept Clubs, Bayless, and Data Compass. We find that Ciccone has waived his right to a jury trial, even under this latter analysis, because his Counterclaim seeks affirmative relief against the Debt- or/Trustee. Similarly, Ciccone is not entitled to a jury trial under the reasoning set forth in Beard because it is clear that" }, { "docid": "2858202", "title": "", "text": "court found that it must look to the nature of the setoff. The court concluded that an action for setoff raised as a counterclaim seeking affirmative relief necessarily submits the claimant to the equitable jurisdiction of the bankruptcy court, thereby waiving the Seventh Amendment right to a jury trial. By contrast, when setoff is raised only as an affirmative defense seeking to reduce, or extinguish, the original claim, the party asserting the claim does not invoke the bankruptcy court’s equitable jurisdiction and retains the right to a jury trial. Id. at 589. Applying the test it had set forth, the court found that the creditor in the matter before it had not waived its right to a jury trial, since the setoff at issue was an affirmative defense seeking only to reduce the amount claimed against the creditor and did not therefore constitute a “claim” against the estate. Cf. In re Creative Conservation, Inc., 1991 WL 261706, slip op. at *2 (Bankr.E.D.Pa. Dec. 5, 1991); and In re TM Carlton House Partners, Ltd., 93 B.R. 859, 870 (Bankr.E.D.Pa.1988) (a creditor can assert setoffs against debtor without violating the automatic stay, but asserting affirmative claims against a debtor is violative of the automatic stay and is properly relegated to the claims process). In In re Allied Companies, Inc., 137 B.R. 919, 924 (S.D.Ind.1991); Bayless v. Crabtree, 108 B.R. 299, 304-05 (W.D.Okla.1989), aff'd, 930 F.2d 32 (10th Cir.1991); and In re Data Compass Corp., 92 B.R. 575, 577-78 (Bankr.E.D.N.Y.1988), the courts also discussed whether the filing of a compulsory counterclaim in a bankruptcy proceeding constitutes a consent to the court’s equitable powers and thus eliminates that creditor’s right to a jury trial. In Data Compass, supra, the court held, like the court in Concept Clubs, that, since the counterclaim in issue was compulsory, the creditor’s assertion of that counterclaim did not adversely affect its right to a jury trial. In Bayless, supra, the court held that the counterclaim in issue was not compulsory, and therefore its assertion waived the creditor’s right to a jury trial. In Allied Companies, supra, the court held" }, { "docid": "14783677", "title": "", "text": "Nor are they aided by the somewhat independent course charted by the Supreme Court since Marathon. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245 92 L.Ed.2d 675 (1986) (adjudication of state law counterclaims before Commodity Futures Trading Commission upheld by reason of control retained by district court, over dissent of Justice Brennan, the author of the plurality opinion in Marathon); Thomas v. Union Carbide Agrie. Products Co., 473 U.S. 568, 105 S.Ct. 3325, 87 L.Ed. 2d 409 (1985) (binding arbitration of disputes among participants in federal pesticide registration program upheld despite limited judicial review and absence of compelling public rights). It may be that an uncontested collection case should be viewed as a core proceeding, but that is not before us. It also may be that a clear decision of Congress to make all receivable cases core proceedings because of their close nexus to liquidation of the estate would have been constitutionally permissible; one of the factors to be considered is the concerns which motivated Congress to depart from the requirements of Article III. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 3258, 92 L.Ed.2d 675 (1986). We are here confronted with only general statutory language and no expression of Congressional concern regarding this type of adversary proceeding. The Debtor’s attempt to squeeze the claim against Essex Builders Company, Inc. into § 157(b)(2)(C) seeks to place a square peg into a round hole. That provision includes as a core proceeding “counterclaims by the estate against persons filing claims against the estate.” Essex filed its counterclaim to the Debtor’s complaint, not the reverse; Essex has filed no independent claim against the estate. Not content with a determination that these proceedings are non-core, the defendant Welch Group, Inc. argues that its proceeding is not “related” to a case under title 11. This would mean that the district court has no jurisdiction of the proceeding under 28 U.S.C. § 1334(b) and the proceeding is therefore not included in the July 12, 1984 order of the District Court of Massachusetts referring all related proceedings" }, { "docid": "13581564", "title": "", "text": "Counterclaims may be void, in light of the presence of the automatic stay, and the resolution of these matters should probably be relegated to the claims process in the Debtor’s bankruptcy case. See In re Sciortino, 114 B.R. 423, 426-27 (Bankr.E.D.Pa.1990). However, by no stretch of the imagination was it compulsory for MW to make claims against the Bank in this Proceeding. The Bank, like the subcontractors also brought into this Proceeding by MW, was joined in the Proceeding in the course of MW’s apparent attempt to bring together all or most parties and matters at issue relating to the construction of the Debtor’s shopping center in this bankruptcy court. Having voluntarily chosen to attempt to expand this court’s jurisdiction over matters surrounding the construction project, and, in particular, using this Proceeding as a vehicle to make claims against the Bank, it appears hypocritical for MW to argue that it is entitled to a jury trial as to part of the Proceeding. Since certain portions of the Proceeding appear to be non-core related claims, see page 114 infra; and Beard v. Braunstein, 914 F.2d 434, 443 (3d Cir.1990), it appears, contrary to MW’s position that this court could and should try the entire proceeding in this court, that we may lack jurisdiction to do so as to at least certain claims. Hence, MW’s request may balkanize the Proceeding into an action potentially triable before different factfinders in different forums. We thus find that, by choosing the equitably-based bankruptcy forum as the situs to resolve its disputes with the Bank, MW has waived any claim to a jury trial as to its claims against all parties, including the Bank. 2. THE IDENTITY OF THIS PROCEEDING AS AN EQUITABLE, CORE PROCEEDING ALSO ELIMINATES MW’S RIGHTS TO A JURY TRIAL AS TO ANY ASPECT OF IT. We also focus on the nature of the Proceeding, as well as the status of MW as a claimant in the main bankruptcy case in which the Proceeding arises. It is clear to us that the Proceeding is, in substance, a counterclaim to MW’s proof of claim" }, { "docid": "11587013", "title": "", "text": "within equitable bankruptcy jurisdiction. While we do not know the details of the theory of the putative cause of action and whether it would be a compulsory or permissive counterclaim, we do know that it arose prepetition and that it exactly equals the amount of a judgment against Hickman. Hence, it also figures into the debtor-creditor relationship. Moreover, Hickman’s argument fallaciously assumes that he has unfettered control over the putative counterclaim. He does not. Rather the counterclaim is property of the estate that belongs to the chapter 7 trustee. At most, Hickman could assert it only to the extent of providing a basis for a defensive offset. The question, then, is whether the Seventh Amendment applies to a defensive offset that is integral to the debtor-creditor relationship. The Supreme Court supplied the answer in Granfinanciera when it explained that the bankruptcy court’s equitable power extends to the resolution of counterclaims, “even though the debtor’s opposing counterclaims are legal in nature and the Seventh Amendment would have entitled creditors to a jury trial had they not tendered claims against the estate.” Granfinanciera, 492 U.S. at 59 n. 14, 109 S.Ct. 2782 (emphasis added). It reasoned that such matters were “integral to the restructuring of debtor-creditor relations.” Id. at 58, 109 S.Ct. 2782. As such, the erstwhile legal issue is transformed into an equitable issue. It follows that Hickman has no jury trial right in the bankruptcy adversary proceeding, even on the counterclaim to the extent that he has the ability to assert it, because he is subject to the Supreme Court’s subject-themselves-to-the-eourt’s-equitable-power analysis. By filing a chapter 7 case, Hickman invoked the bankruptcy court’s equitable jurisdiction in a more profound manner than a mere creditor who has the Hobson’s choice either to submit to the equitable power of the court or to forego a bona fide claim. The act of filing the chapter 7 case causes the equitable bankruptcy proceeding to come into existence. All property of the debtor and property of the estate passes into the exclusive jurisdiction of the court. 28 U.S.C. § 1334(e). Hickman is a participant in" }, { "docid": "2858203", "title": "", "text": "859, 870 (Bankr.E.D.Pa.1988) (a creditor can assert setoffs against debtor without violating the automatic stay, but asserting affirmative claims against a debtor is violative of the automatic stay and is properly relegated to the claims process). In In re Allied Companies, Inc., 137 B.R. 919, 924 (S.D.Ind.1991); Bayless v. Crabtree, 108 B.R. 299, 304-05 (W.D.Okla.1989), aff'd, 930 F.2d 32 (10th Cir.1991); and In re Data Compass Corp., 92 B.R. 575, 577-78 (Bankr.E.D.N.Y.1988), the courts also discussed whether the filing of a compulsory counterclaim in a bankruptcy proceeding constitutes a consent to the court’s equitable powers and thus eliminates that creditor’s right to a jury trial. In Data Compass, supra, the court held, like the court in Concept Clubs, that, since the counterclaim in issue was compulsory, the creditor’s assertion of that counterclaim did not adversely affect its right to a jury trial. In Bayless, supra, the court held that the counterclaim in issue was not compulsory, and therefore its assertion waived the creditor’s right to a jury trial. In Allied Companies, supra, the court held that whether the counterclaim was compulsory or not, its assertion constituted an invocation of the bankruptcy court’s equitable jurisdiction which eliminated the creditor’s right to a jury trial. The Allied Companies court therefore utilized a different analysis than the other cases cited. It based its result on its finding that Granfinanciera held that consent on the creditor’s part was not determinative. 137 B.R. at 924. The court reasoned that Granfinanciera was not decided on the issue of waiver but on the mere fact that, compulsory and/or involuntary or not, the assertion of a counterclaim brought the creditor within the “public rights” sphere of restructuring the debtor-creditor relationship. Id. at 925. Thus, under the reasoning of this case, an assertion of any counterclaim by a creditor would eliminate its right to a jury trial. The Third Circuit Court of Appeals has not addressed the issue of whether a creditor’s filing of a counterclaim should be analyzed as an issue of consent to a bankruptcy court’s equitable jurisdiction or as a potential waiver of a jury trial" }, { "docid": "1136347", "title": "", "text": "to be the subject of more complete proceedings to be brought a later date. This observation has also been made by a number of courts in determining whether to apply res judica-ta to prior bankruptcy court determinations. In D-1 Enterprises, Inc., v. Commercial State Bank, 864 F.2d 36 (5th Cir.1989), the court held that the entry of a consent order lifting the automatic stay in favor of a secured party did not preclude a debtor’s subsequent adversary proceeding alleging various lender liability claims, explaining that [bankruptcy is a unique form of litigation in that each case comprises a series of more or less self-contained episodes that resolve particular disputes at particular times. There are two basic forms of adversary process within a bankruptcy case: “contested matters” and “adversary proceedings.” Counterclaims are compulsory only in “adversary proceedings,” but not in the quick motion-and-hearing style “contested matters.” Id. at 39. The court went on to note that even in adversary proceedings where compulsory counterclaims requirements do apply, Fed.R.Bank.P. 7013 allows for a “liberal escape clause” in that upon leave of court, a debtor in possession who fails to plead a counterclaim through oversight, inadvertence, or excusable neglect, or when justice so requires, may be allowed to amend its pleadings or commence a new adversary proceeding. Accordingly, the D-l court did not invoke the doctrine of res judicata because to do so “would lay a heavier burden on the debtor to respond with related claims in some unspecified ‘contested matters’ than in ‘adversary proceedings’, an exact inversion of the apparent wishes of Congress.” Id. at 40; see also County Fuel Co., Inc., v. Equitable Bank Corp., 832 F.2d 290, 293 (4th Cir.1987) (neither debtor’s failure to object to creditor’s claim or to raise counterclaim in opposition to creditor’s lift stay motion, standing alone, warrant invocation of res judicata). Relying extensively on the rational in D-l, the court in The Fonda Group, Inc. v. Contemporary Packaging Corp. (In The Fonda Group, Inc.), 108 B.R. 962, 970 (Bankr.D.N.J.1989), held that a debtor’s preference action was not precluded simply because it was not raised as a" }, { "docid": "1281694", "title": "", "text": "is waived in core proceedings where the non-debtor party has consented to the jurisdiction of the bankruptcy court, i.e., by filing a claim and raising an issue intrinsic to administration of the estate. Another line of cases, however, holds that a narrow class of proceedings exists which are core but legal in nature, therefore entitling the parties to a jury trial. See Garrett Rd. Supermarket, Inc. v. Wetterau Finance Co., 95 B.R. 904 (E.D.Pa.1989); In re Kenval Marketing Corp., 65 B.R. 548 (E.D.Pa.1986). See also, In re Jackson, 90 B.R. 126 (Bankr.E.D.Pa.1988) (holding that not all core proceedings before the bankruptcy courts are equitable in nature and, therefore, that a right to a jury trial may exist in certain circumstances); In re Direct Satellite Communications, Inc., 91 B.R. 7, 8 (Bankr.E.D.Pa.1988). In this regard, we believe the United States Supreme Court recently resolved some of the confusion with respect to the right to a jury trial before the bankruptcy court. In Granfinanciera v. Nordberg, — U.S. -, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Court addressed whether a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial where the trustee in bankruptcy has sued to recover an allegedly fraudulent transfer. In its discussion, the Court distinguished the rights of creditors who have filed claims from those who have not: As Katchen makes clear, however, by submitting a claim against the bankruptcy estate, creditors subject themselves in the Court’s equitable power to disallow those claims, even though the debtor’s opposing counterclaims are legal in nature and the Seventh Amendment would have entitled creditors to a jury trial had they not tendered claims against the estate. 109 S.Ct. at 2799 n. 14. The Court’s discussion in Granfinanci-era settles the issue of a creditor’s entitlement to a jury trial on the issue of allowability of a claim. See also Commodities Futures Trading Comm. v. Schor, 478 U.S. 833, 852, 106 S.Ct. 3245, 3257, 92 L.Ed.2d 675 (1988), and Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 105 S.Ct. 3325, 87 L.Ed.2d" }, { "docid": "14589998", "title": "", "text": "or equitable rights to payment and is broadly construed. Moreover, written proofs of claim need not adhere to the official forms to be acceptable. Furthermore, the Court notes that the principle of jurisdiction by consent ... has been held applicable where, instead of a proof of claim, the creditor asserts a claim for affirmative relief. Bayless, 108 B.R. at 305 (citations omitted). The Bayless court concluded that by filing a counterclaim, the defendants had submitted to the equitable jurisdiction of the bankruptcy court, thereby losing their entitlement to a jury. Holly Farms argues that Bayless is distinguishable because the counterclaim filed in Bayless was not compulsory and thus permitted an inference of consent to the jurisdiction of the bankruptcy courts and the loss of an entitlement to a jury, whereas in this case Holly Farms’ counterclaim is compulsory and thus does not manifest consent to bankruptcy court jurisdiction. The Bayless court apparently does use an implied consent theory as a basis for finding bankruptcy court jurisdiction. See Bayless, 108 B.R. at 304-05. Assuming that the filing of a compulsory counterclaim will not admit of any finding of consent to jurisdiction, the Supreme Court’s treatment of the waiver rationale in Granfinanciera demonstrates that the lack of consent on the claimant’s part is not dispositive. The Court specifically disclaimed the idea that a waiver ra tionale explained why those who filed claims forsook an opportunity for a jury trial. The Court distinguished the situation in Commodity Futures Trading Comm’n v. Schor, 478 U.S. 883, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), where the Court relied on a waiver rationale in holding that the Commodities Futures Trading Commission could adjudicate state law counterclaims to a federal action brought by investors. The Court reached this conclusion ... not on the ground that the Commission had possession of a disputed res, to which the investors laid claim, but on the ground that Congress did not require investors to avail themselves of the remedial scheme over which the Commission presided. The investors could have pursued their claims, albeit less expeditiously, in federal court. By electing to" }, { "docid": "4124191", "title": "", "text": "may entertain summary jurisdiction over an appropriate counterclaim, where the counterclaim arises out of the transaction that is the subject matter of the creditor’s claim.”). While the Supreme Court did not specifically adopt this principle in Katehen, Langenkamp or Granfinanciera, it did not reject it. Moreover, in In re Commodity Futures Trading, supra, 478 U.S. at 852, 106 S.Ct. 3245, the Supreme Court indicated that in Katehen, it had held as much. The submission to bankruptcy court jurisdiction arising from the filing of a proof of claim cannot be avoided by couching the proof of claim in protective language as the Third Circuit made clear in Travellers International A.G., supra, 982 F.2d at 98-100. In that case, similar to Pinnacle here, the creditor stated in its proof of claim that, by filing the claim, it did not intend to waive its demand for a jury trial in the debtor’s adversary proceeding. The creditor also filed a motion with the district court to secure the right to a jury trial on the adversary action or, in the alternative, obtain a non-jury adjudication from an Article III court. These facts did not deter the Third Circuit from ruling that by filing its proof of claim the creditor had waived its right to a jury trial and submitted itself to the jurisdiction of the bankruptcy court over the claims raised by the debtor in the adversary proceeding. C. Pinnacle in its brief provides no insight into its view of the applicability of the principles espoused in the above Supreme Court and Third Circuit decisions to the matter at hand. Rather it focuses almost exclusively on whether a creditor submits to the equitable jurisdiction of the bankruptcy court when it files a protective or defensive proof of claim under protest in order to preserve its right to the claim. Failing to note the Travellers decision, its principal support for this argument is the decision of the Third Circuit in Beard v. Braunstein, 914 F.2d 434 (3d Cir.1990). In Beard v. Braunstein, the Chapter 7 trustee commenced an adversary proceeding against Braunstein seeking to recover" }, { "docid": "14783678", "title": "", "text": "requirements of Article III. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 3258, 92 L.Ed.2d 675 (1986). We are here confronted with only general statutory language and no expression of Congressional concern regarding this type of adversary proceeding. The Debtor’s attempt to squeeze the claim against Essex Builders Company, Inc. into § 157(b)(2)(C) seeks to place a square peg into a round hole. That provision includes as a core proceeding “counterclaims by the estate against persons filing claims against the estate.” Essex filed its counterclaim to the Debtor’s complaint, not the reverse; Essex has filed no independent claim against the estate. Not content with a determination that these proceedings are non-core, the defendant Welch Group, Inc. argues that its proceeding is not “related” to a case under title 11. This would mean that the district court has no jurisdiction of the proceeding under 28 U.S.C. § 1334(b) and the proceeding is therefore not included in the July 12, 1984 order of the District Court of Massachusetts referring all related proceedings to this Court. .Section 1334(b), enacted in 1984 by the BAFJ, has little legislative history; its language originally appeared in 28 U.S.C. § 1471(b) which was enacted as part of the Bankruptcy Reform Act of 1978. The legislative history of § 1471(b) indicates an intent on the part of Congress to make a broad jurisdictional grant. Kelley v. Nodine Mortgage Co. (In re Salem Mortgage Co.), 783 F.2d 626, 633 (6th Cir.1986). Collier takes the position that related proceedings include all causes of action owned by the debtor that become property of the estate. See 1 Collier on Bankruptcy, § 3.01[l][c][iv]. The decisions favor including among related proceedings all causes of action except those having an extremely tenuous relationship with the estate. See, e.g., Kelley v. Nodine Mortgage Co. (In re Salem Mortgage Co.), at 634 (1986). These proceedings are related proceedings under either analysis. II. RIGHT TO JURY TRIAL Because of the related, non-core nature of these proceedings, there can be no doubt that the Seventh Amendment entitles the defendants to trial by jury." }, { "docid": "2858201", "title": "", "text": "the filing of a counterclaim by a defendant-creditor in a contested or adversary matter, as in the instant case, constitutes a relinquishment of the creditor’s right to a jury trial because the creditor, in filing the counterclaim, is making a “claim” against the estate which represents the creditor’s consent to the equitable powers of the bankruptcy court. In In re Concept Clubs, Inc., 154 B.R. 581 (D.Utah 1993), the court discussed and established a method for determining whether the assertion of a counterclaim in the form of a setoff constitutes the making of a “claim” which eliminates the creditor’s right to a jury trial, per Granfinanciera and Langenkemp. The Concept Clubs court stated that, under 11 U.S.C. § 101(5) of the Bankruptcy Code, a “claim” against the debtor includes an assertion of any legal obligation against the debtor, no matter how remote or contingent. The Court found that “a setoff action is an enforceable obligation and, therefore, may constitute a claim against the bankruptcy estate.” Id. To determine whether a setoff was a “claim,” the court found that it must look to the nature of the setoff. The court concluded that an action for setoff raised as a counterclaim seeking affirmative relief necessarily submits the claimant to the equitable jurisdiction of the bankruptcy court, thereby waiving the Seventh Amendment right to a jury trial. By contrast, when setoff is raised only as an affirmative defense seeking to reduce, or extinguish, the original claim, the party asserting the claim does not invoke the bankruptcy court’s equitable jurisdiction and retains the right to a jury trial. Id. at 589. Applying the test it had set forth, the court found that the creditor in the matter before it had not waived its right to a jury trial, since the setoff at issue was an affirmative defense seeking only to reduce the amount claimed against the creditor and did not therefore constitute a “claim” against the estate. Cf. In re Creative Conservation, Inc., 1991 WL 261706, slip op. at *2 (Bankr.E.D.Pa. Dec. 5, 1991); and In re TM Carlton House Partners, Ltd., 93 B.R." }, { "docid": "14589999", "title": "", "text": "filing of a compulsory counterclaim will not admit of any finding of consent to jurisdiction, the Supreme Court’s treatment of the waiver rationale in Granfinanciera demonstrates that the lack of consent on the claimant’s part is not dispositive. The Court specifically disclaimed the idea that a waiver ra tionale explained why those who filed claims forsook an opportunity for a jury trial. The Court distinguished the situation in Commodity Futures Trading Comm’n v. Schor, 478 U.S. 883, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), where the Court relied on a waiver rationale in holding that the Commodities Futures Trading Commission could adjudicate state law counterclaims to a federal action brought by investors. The Court reached this conclusion ... not on the ground that the Commission had possession of a disputed res, to which the investors laid claim, but on the ground that Congress did not require investors to avail themselves of the remedial scheme over which the Commission presided. The investors could have pursued their claims, albeit less expeditiously, in federal court. By electing to use the speedier, alternative procedures Congress had created, the Court said, the investors waived their right to have the state-law counterclaims against them adjudicated by an Article III court. Parallel reasoning is unavailable in the context of bankruptcy proceedings, because creditors lack an alternative forum to the bankruptcy court in which to pursue their claims. As Katchen makes clear, however, by submitting a claim against the bankruptcy estate, creditors subject themselves to the court’s equitable power to disallow those claims, even though the debtor’s opposing counterclaims are legal in nature and the Seventh Amendment would have entitled creditors to a jury trial had they not tendered claims against the estate. Granfinanciera, 109 S.Ct. at 2799, n. 14 (citation omitted). Just as a waiver theory fails to explain why those who submit claims against the bankruptcy estate lose the right to a jury trial, so too an implied consent theory is inadequate. The key to the loss of a jury trial lies not in some choice purportedly made by a claimant but rather in the fact" }, { "docid": "2858209", "title": "", "text": "(Bankr.E.D.Pa.1990). However, we find that a mere attempt to invoke this court’s equitable “claims resolution” process through assertion of a non-compulsory counterclaim, whether successful or not, is a sufficient act on the part of a creditor to eliminate its right to a jury trial, because no such right exists in that process. Cf. Commodity Future Trading Comm’n v. Schor, 478 U.S. 833, 848-50, 106 S.Ct. 3245, 3255-56, 92 L.Ed.2d 675 (1986) (filing of a counterclaim in an administrative forum waives the right to a jury trial of the substance of the claim and counterclaim). D. CONCLUSION On the basis of the foregoing analyses, this court must deny Ciccone’s request for a jury trial. A trial of this entire proceeding will therefore be conducted before this court on September 9, 1993. ORDER AND NOW, this 27th day of July, 1993, upon consideration of the Briefs of the Plaintiff-Trustee and Defendant F. EM-MET CICCONE (“Ciccone”) filed pursuant to our Order of July 7, 1993, addressing the issue of whether Ciccone is entitled to a jury trial of any of the claims raised against him and by him in the above-entitled proceeding, it is hereby ORDERED as follows: 1. It is DETERMINED that Ciccone is not entitled to a jury trial of any of the claims and counterclaims relevant to him which were raised in this proceeding. 2. The trial of this entire proceeding will be conducted on THURSDAY, SEPTEMBER 9, 1993, AT 9:30 A.M. and shall be held in Courtroom No. 2 (Room 3718), United States Court House, 601 Market Street, Philadelphia, PA 19106. . This pleading was erroneously filed in this court. It should be refiled by Ciccone in the District Court." }, { "docid": "22736350", "title": "", "text": "case pending before it”).' The foundational case in the modern era is Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). The Commodity Futures Trading Commission (CFTC), which Congress had authorized to hear customer complaints against commodities brokers, issued a regulation allowing itself to hear state-law counterclaims as well. William Schor filed a complaint with the CFTC against his broker, and the broker, which had previously filed claims against Schor in federal court, refiled them as counterclaims in the CFTC proceeding. The CFTC ruled against Schor on the counterclaims. This Court upheld that ruling against both statutory and constitutional challenges. On the constitutional question (the one relevant here) the Court began by holding' that Schor had “waived any right he may have possessed to the full trial of [the broker’s] counterclaim before an Article III court.” Id., at 849, 106 S.Ct. 3245. The Court then explained why this waiver legitimated the CFTC’s exercise of authority: “[A]s a personal right, Article Ill’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights”&emdash;such as the right to a jury&emdash;“that dictate the procedures by which civil and criminal matters must be tried.” Id., at 848-849, 106 S.Ct. 3245. The Court went on to state that a litigant’s waiver of his “personal right” to an Article III court is not always dispositive because Article III “not only preserves to litigants their interest in an. impartial and independent federal adjudication of claims ..., but also serves as ‘an inseparable element of the constitutional system of checks and balances.’ ... To the extent that this structural principle is implicated in a given case”&emdash;but only to that extent&emdash; “the parties cannot by consent cure the constitutional difficulty....” Id., at 850-851,106 S.Ct. 3245. Leaning heavily on the importance of Schor’s consent, the Court found no structural concern implicated by the CFTC’s adjudication of the counterclaims against him. While “Congress gave the CFTC the authority to adjudicate such matters,” the Court wrote, “the decision to invoke this forum is left entirely to the" }, { "docid": "11405929", "title": "", "text": "notice of the scheme established by the 1978 amendments to FIFRA might have a claim for a taking of property interests protected by state law. Those who submitted data with such notice had no such interest. Thomas, 473 U.S. at 584-585, 105 S.Ct. at 3334-45. . Further comment on the \"public rights\" doctrine was provided in Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 854, 106 S.Ct. 3245, 3258, 92 L.Ed.2d 675 (1986), where the Court noted that where private, common law rights are at stake, our examination of the congressional attempt to control the manner in which those rights are adjudicated has been searching. In this case, private common law rights are at stake, and our examination is accordingly searching. . Granfinanciera specifically refused to \"defend\" this \"thesis,” and noted that it “has met with substantial scholarly criticism.” See 109 S.Ct. at 2797 & n. 11. . We conclude that the counterclaim was compulsory because it arose out of the same transaction as the original claim. As we explained in Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961), a counterclaim is logically related to the opposing party’s claim when separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues ... the doctrine of res judicata compels the counterclaimant to assert in the same suit.... Braunstein alleged the poor condition of the premises as both a defense to the action for rent and the cause of the damages for which he counterclaimed. We acknowledge that Bankr. R. 7013, though providing generally that Fed.R.Civ.P. 13 applies in adversary proceedings, differs from that rule in that under the bankruptcy rule, \"a party sued by a trustee ... need not state as a counterclaim any claim that the party has against the debtor, the debtor’s property, or the estate, unless the claim arose after the entry of the order for relief.\" Braunstein’s counterclaim does not specify whether his damages or claim arose pre-" } ]

[ { "docid": "1148989", "title": "", "text": "observable. 38 C.F.R. § 21.51(c) (1994) (last emphasis added). Other subsections of § 21.51 also reflect the requirement that the service-connected disability “materially contribute to the impairment.” For instance, 38 C.F.R. § 21.51(f)(2) provides that “[a]n employment handicap does not exist when any of the following conditions is present: .... (ii) The veteran’s employability is impaired, but his or her service-connected disability does not materially contribute to the impairment of employability.” 38 C.F.R. § 21.51(f)(2) (1994); see also 38 C.F.R. § 21.51(e), (f)(l)(ii) (1994). III. Section 501(a) of title 38, U.S.Code, provides that “[t]he Secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws_” (Emphasis added.) The issue before this Court is whether VA’s imposition by regulation of a causal nexus, i.e., a requirement that a veteran’s service-connected disability “materially contribute” to the veteran’s employment handicap, is consistent with the underlying statute, 38 U.S.C. § 3102. A The Plain Meaning of the Statute The proper starting point in analyzing whether a regulation is consistent with a statute is to look at the language of the statute itself. Gardner v. Derwinski, 1 Vet.App. 584, 586-88 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, — U.S. -, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); see also Good Samaritan Hosp. v. Shalala, — U.S. -, -, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-13, 104 S.Ct. at 2781; see also Conroy v. Aniskoff, — U.S. -, -, 113 S.Ct. 1562, 1564, 123 L.Ed.2d 229 (1993) (upholding the plain meaning of a statute where it was “unambiguous, unequivocal, and unlimited”). The version of § 1502, title 38, U.S.Code (hereinafter § 3102) in effect" } ]

[ { "docid": "11133787", "title": "", "text": "I agree that vacatur of the April 2001 Board of Veterans’ Appeals (Board) decision and remand of the matter are appropriate and do so on the ground that the Board decision was based upon two VA issuances, VA Gen. Coun. Prec. 3-98 (Mar. 19, 1998) [hereinafter G.C. Prec. 3-98] and 38 C.F.R. § 3.57(a)(1)(iii) (2003) (defining child), which did not comply with the notice and rulemaking procedures of the Administrative Procedure Act (APA), see 5 U.S.C. § 553, and thus are invalid. See Splane v. West, 216 F.3d 1058, 1062-64 (Fed.Cir.2000); Fugere v. Derwinski, 1 Vet.App. 103, 110 (1990) (invalidating VA’s rescission of VA issuance without reaching issue of Secretary’s authority to act). ‘VA is required under 5 U.S.C. § 552(a)(1) to ‘state and currently publish in the Federal Register,’ among other things, ‘rules of procedure, ... substantive rules of general applicability adopted as authorized by law, ... [and] each amendment, revision, or repeal of the foregoing.’ ” Disabled Amer. Veterans v. Gober, 234 F.3d 682, 688 (Fed.Cir.2000) (quoting 5 U.S.C. § 552(a)(1)(C)-(E)); see Paralyzed Veterans of Amer. (PVA) v. West, 138 F.3d 1434, 1435 (Fed.Cir.1998). Substantive, or legislative, rules are “those that effect a change in existing law or policy or which affect individual rights and obligations.” PVA 138 F.3d at 1436. Section 553 of title 5, U.S.Code, provides procedures for notice and rulemaking with which VA is required to comply. See 5 U.S.C. § 553(b)-(e); PVA supra. In G.C. Prec. 3-98, the General Counsel excludes home schools from the definition of “educational institution,” 38 U.S.C. § 101(4)(A)(iii), which exclusion renders claimants with home-schooled children, between 18 and 23 years old, ineligible to receive benefits for those children pursuant to 38 U.S.C. § 1521(c) or 38 U.S.C. § 1115. Thus, because VA, in G.C. Prec. 3-98, has so limited eligibility for VA benefits, VA “effected] a change in existing law or policy or [VA] ... affect[ed] individual rights and obligations.” PVA, 138 F.3d at 1436. Further, the General Counsel, in his opinion, appears to concede that provisions related to the approval of educational institutions may be legislative because “they" }, { "docid": "7146933", "title": "", "text": "1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). “If the intent of Congress is clear, that is the end of the matter.” Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (quoting Chevron, U.S.A, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The first step, therefore, in assessing what meaning to give to the VBA amendments to section 7261 involves examining the text of these amendments. The change intended by addition of the phrase “adverse to the claimant” is clear. Before the VBA this Court arguably had the authority to set aside a clearly erroneous finding of fact that benefitted a claimant. The Federal Circuit addressed an analogous issue when it determined that once a finding of well groundedness had been made (Under the law as it existed at that time, a finding of well groundedness was clearly a finding beneficial to the claimant.), the Court could not reconsider it. Nolen v. Gober, 222 F.3d 1356, 1360 (Fed.Cir.2000). It is uncertain to what extent, if ever, the Court, postNolen, has set aside beneficial findings of fact. Indeed, this Court, in an opinion issued before the VBA’s enactment, noted that it was a “serious question” whether the Court could disturb a factual determination that is favorable to an appellant. See Myers v. Principi, 16 Vet.App. 228, 232 (2002); see also Nolen, 222 F.3d at 1360 (noting that “[n]either this Court nor the ... Federal Circuit has held whether this Court can disturb a favorable Board determination”). The VBA answers this question and the Court is clearly without authority to reverse findings of fact that are beneficial to claimants. The effect of the other amendments on the Court’s standard of review is not as clear. As the Federal Circuit re cently noted in discussing another provision of the VBA, “[t]o say that the statute is less than brilliant in its clarity is perhaps to gild it beyond its entitlement.” Morgan v. Principi, 327 F.3d 1357," }, { "docid": "11133766", "title": "", "text": "“ ‘The starting point in interpreting a statute is its language.’ ” Lee (Raymond) v. West, 13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)). The “plain meaning [of a statute] must be given effect unless a ‘literal application of [the] statute [or regulation] will produce a result demonstrably at odds with the intention of its drafters.’ ” Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115[, 115 S.Ct. 552, 130 L.Ed.2d 462] (1994); Fagan [v. West], 13 Vet.App. [48,] 52 [(1999)]; Curtis [v. West], 11 Vet.App. [129,] 133 [(1998)]. “If the intent of Congress is clear, that is the end of the matter”. Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (quoting 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)), offing 4 Vet.App. 141 (1993) (mem.). Lee, supra. If, as here, the statute fails to define an operative term, that may leave a “gap” in the statute, and the Secretary may undertake to fill that gap, but may not add requirements or limitations to those set forth in the statute. See Ozer v. Principi, 14 Vet.App. 257, 264 (2001); Davenport v. Brown, 7 Vet.App. 476, 482 (1995). Here, the Secretary has attempted to fill that gap through the General Counsel opinion and through the subsequent amendment to § 3.57(a) (1) (iii). See 65 Fed.Reg. at 12,116. In the precedent opinion, the General Counsel addressed the question “[w]hether a person who is between 18 and 23 years of age and is pursuing a high school education in a home-school program is pursuing a course of instruction at an educational institution for purposes of 38 U.S.C. § 101 (4)(A)(iii).” G.C. Prec. 3-98, at 1. The General Counsel’s opinion answered that question by concluding that a home-school program did not fit within the statu tory scheme of section 101(4)(A)(iii) because “the program terminates when the child completes his or her course of instruction or" }, { "docid": "11133765", "title": "", "text": "that by attending home school he was not in pursuit of a course of instruction at an “approved educational institution” for purposes of section 101 (4)(A)(iii). R. at 5. The Court observes that, according to the VA regulatory history, § 3.57(a)(1)(iii) was promulgated to implement G.C. Prec. 3-98. See 65 Fed.Reg. 12,116, 12,116 (March 8, 2000) (amending 38 C.F.R. § 3.57(a)(1)(iii) to accord with conclusions in G.C. Prec. 3-98). Under 38 U.S.C. § 7104(c), the precedent opinions of the VA General Counsel are binding on the Board. 38 U.S.C. § 7104(e); see Cycholl v. Principi, 15 Vet.App. 355, 360 (2001) (citing Herlehy v. Principi, 15 Vet.App. 33, 34 (2001) (per curiam order)); see also 38 C.F.R. § 20.901(c) (2003). Therefore, the Board was required to follow the VA General Counsel precedent opinion in this case. That General Counsel opinion reached its conclusion by interpreting language from 38 U.S.C. §§ 101(4)(A)(iii) and 104. In order to review the Board decision here on appeal, then, the Court must first examine the Secretary’s interpretation of these statutory provisions. “ ‘The starting point in interpreting a statute is its language.’ ” Lee (Raymond) v. West, 13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)). The “plain meaning [of a statute] must be given effect unless a ‘literal application of [the] statute [or regulation] will produce a result demonstrably at odds with the intention of its drafters.’ ” Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115[, 115 S.Ct. 552, 130 L.Ed.2d 462] (1994); Fagan [v. West], 13 Vet.App. [48,] 52 [(1999)]; Curtis [v. West], 11 Vet.App. [129,] 133 [(1998)]. “If the intent of Congress is clear, that is the end of the matter”. Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (quoting 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)), offing 4 Vet.App. 141 (1993) (mem.). Lee, supra. If, as here, the statute fails to define" }, { "docid": "11133764", "title": "", "text": "of this section [ (which provisions are not relevant here)], the term child of the veteran means [someone meeting criteria that are not disputed here]; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. For the purposes of this section and § 3.667, the term “educational institution” means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria. The term includes schools, colleges, academies, seminaries, technical institutes, and universities, but does not include home-school programs. 38 C.F.R. §§ 3.57(a) (2003) (emphasis added). III. ANALYSIS A. G.C. Prec. 3-98 In this case, the Board, relying on § 3.57(a)(1)(iii) and G.C. Prec. 3-98, determined that Mr. Theiss’s 18-year-old son was not a “child” on the basis that by attending home school he was not in pursuit of a course of instruction at an “approved educational institution” for purposes of section 101 (4)(A)(iii). R. at 5. The Court observes that, according to the VA regulatory history, § 3.57(a)(1)(iii) was promulgated to implement G.C. Prec. 3-98. See 65 Fed.Reg. 12,116, 12,116 (March 8, 2000) (amending 38 C.F.R. § 3.57(a)(1)(iii) to accord with conclusions in G.C. Prec. 3-98). Under 38 U.S.C. § 7104(c), the precedent opinions of the VA General Counsel are binding on the Board. 38 U.S.C. § 7104(e); see Cycholl v. Principi, 15 Vet.App. 355, 360 (2001) (citing Herlehy v. Principi, 15 Vet.App. 33, 34 (2001) (per curiam order)); see also 38 C.F.R. § 20.901(c) (2003). Therefore, the Board was required to follow the VA General Counsel precedent opinion in this case. That General Counsel opinion reached its conclusion by interpreting language from 38 U.S.C. §§ 101(4)(A)(iii) and 104. In order to review the Board decision here on appeal, then, the Court must first examine the Secretary’s interpretation of these statutory provisions." }, { "docid": "11133779", "title": "", "text": "was not adopted in accordance with the notice-and-public-comment requirements of the Administrative Procedure Act, 5 U.S.C. §§ 552(a)(1), 553, the Court concludes that the General Counsel opinion also constituted a substantive rule that was not adopted pursuant to those notice and comment procedures and is thus invalid. See Splane v. West, 216 F.3d 1058, 1062-64 (Fed.Cir.2000). B. 38 C.F.R. § 3.57(a)(1)(iii) Finally, the Board decision also relied on the language in VA regulation 38 C.F.R. § 3.57(a)(1)(iii) to deny Mr. Theiss additional pension benefits. As indicated above, § 3.57(a)(1)(iii) was amended in March 2000 “to bring the regulations into conformance with the governing statutes as interpreted by VA’s General Counsel” by specifically excluding home-school programs from the definition of an approved “educational institution.” 65 Fed.Reg. at 12,116 (summary identifying VA Gen. Coun. Prec. 03-98). The Supplementary Information to this amendment also explained: “This final rule interprets statutory provisions and makes non-substantive changes. Accordingly, there is a basis under 5 U.S.C. [§ ]553 to dispense with prior notice and comment and a delayed effective date.” 65 Fed.Reg. at 12,116. In examining the General Counsel opinion itself, the Court notes that that opinion, referring to paragraph 14.06 of part IV of the Veterans Benefits Administration Adjudication Procedure Manual M21-1 [hereinafter Manual M21-1], stated that a lack of accreditation of a school was a valid basis for VA to disapprove that school as an “educational institution.” G.C. Prec. 3-98 at 3. The opinion concluded: “We believe that these provisions in [Manual] M21-1 represent a substantive rule because they establish criteria for entitlement to compensation.” Id. at 4. The opinion concluded further that section 104(a), which gives the Secretary authority to “approve or disapprove such educational institutions,” would provide a legal basis for this substantive rule. Id. at 4-5. The opinion recommended that, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 552(a)(1) and 553, and 38 U.S.C. § 501, VA should promulgate a regulation that would specify the criteria for an educational institution that would satisfy the requirements of sections 101 (4)(A)(iii) and 104(a). Id. at 5. The regulation adopted by the" }, { "docid": "48657", "title": "", "text": "(stating that “[i]n using a standard that exceeded that found in the regulation, the Board committed legal error.”); see also Theiss v. Principi 18 Vet.App. 204, 208 (2004), as amended (Aug. 26, 2004) (“If, as here, the statute fails to define an operative term, that may leave a ‘gap’ in the statute, and the Secretary may undertake to fill that gap, but may not add requirements 'or limitations to those set forth in the statute.” (citing Ozer v. Principi, 14 Vet.App. 257, 264 (2001); Davenport v. Brown, 7 Vet.App. 476, 482 (1995))); Black, 11 Vet.App. at 17. Although the Secretary cites to Dor-land’s and various other dictionaries for the proposition that a topical application is not a systemic treatment, the definitions are not so exact. Systemic, for example, is not defined as excluding topical treatment nor is topical defined as something other than systemic. Moreover, neither definition specifically addresses the use of a corticosteroid. Succinctly stated, the Sec retary’s reliance on Dorland’s does not demonstrate the proposition that “systemic treatment” categorically, or even in common parlance, excludes topical treatment. See Jones v. Shinseki 26 Vet.App. 56, 64 (2012) (noting that this Court should not take judicial notice of medical dictionary evidence when definitions may support opposing arguments and thus create a reasonable factual dispute); of. Nielson v. Shinseki 23 Vet.App. 56, 59 (2009) (“It is commonplace to consult dictionaries to ascertain a term’s ordinary meaning.” (citing United States v. Rodgers, 466 U.S. 475, 479, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984); McGee v. Peake, 511 F.3d 1352, 1356 (Fed.Cir.2008); Telecare Corp. v. Leavitt, 409 F.3d 1345, 1353 (Fed.Cir.2005))) aff'd, 607 F.3d 802 (Fed.Cir.2010). Indeed, at oral argument Mr. Johnson provided a perfect example of a so-called “topical” therapy with a systemic effect— use of a smoking cessation patch. Oral Argument at 11:03-25 Johnson v. McDonald, U.S. Vet.App. No. 14-2778 (argued November 17, 2015) http://www. uscourts.cavc.gov/oraLarguments_audio. php; see generally, What is a Nicotine Patch?, https://www.nicodermcq.com/what-is-a-nicotine-patch.html (“While you wear the patch, nicotine passes through the skin into your blood. This delivers nicotine in a steady stream____”). Succinctly stated, the Dorland’s and other" }, { "docid": "11133760", "title": "", "text": "April 1993, a VA regional office (RO) awarded him non-service-connected VA pension benefits, effective December 1991. R. at 21. He also received additional pension benefits for his dependent children under 38 U.S.C. § 1521(c). R. at 35. In September 1999, Mr. Theiss filed a VA Form 21-674C, “Request for Approval of School Attendance” for his son, who would turn 18 years old on November 24, 1999; who, according to the request, was attending the “Theiss Christian Home School”; and who was expected to graduate on June 30, 2000. R. at 32. The RO denied Mr. Theiss additional benefits under section 1115 for his son beyond his son’s 18th birthday in November 1999. R. at 35. The RO advised Mr. Theiss that G.C. Prec. 3-98 had determined that a person who is between 18 and 23 years of age and is enrolled in a home school is not a child because he was not pursuing a course of instruction at an “educational institution” for purposes of sections 101(4)(A)(iii) and 104(a) of title 38, U.S.Code. R. at 35. In March 2000, Mr. Theiss advised the RO that although his son no longer resided at home, Mr. Theiss wished to appeal the RO decision to the Board because his son had been a full-time home-schooled student from December 1, 1999, through February 29, 2000. R. at 74. In the April 6, 2001, Board decision here on appeal, the Board, relying on G.C. Prec. 3-98, found that the Secretary specifically had not approved home schools as “educational institutions” for purposes of section 101 (4)(A)(iii), and concluded, therefore, that Mr. Theiss’s son was not a “child” as defined by that section and thus also was not a child for purposes of entitlement to additional pension benefits under 38 U.S.C. § 1521(c). R. at 5 (also conclud ing that “the provisions of 38 C.F.R. § 3.57(a)(1)(iii) specifically note that ... the term ‘educational institution’ does not include home-school programs”). II. APPLICABLE LAW The pertinent law applicable to this matter provides: § 101. Definitions (4)(A) The term “child” means (except for purposes of chapter 19 of this" }, { "docid": "7146932", "title": "", "text": "section 7252(b) of this title and shall— (1) take due account of the Secretary’s application of section 5107(b) of this title; and (2) take due account of the rule of prejudicial error. 38 U.S.C. § 7261(a), (b) (as amended by Pub. Law. No. 107-330) (emphasis added). Contrary to the appellant’s contentions, the Court finds that these amendments have, by their language, made very little change to our standard of review. Even if Congress (or at least some individual Members) intended to make some change to our standard of review, the VBA, as written, does not effectuate such a change. 1. Language of the Statute “ ‘The starting point in interpreting a statute is its language.’ ” Lee v. West, 13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993).) The “plain meaning [of a statute] must be given effect unless a ‘literal application of [the] statute will produce a result demonstrably at odds with the intention of its drafters.’ ” Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). “If the intent of Congress is clear, that is the end of the matter.” Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (quoting Chevron, U.S.A, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The first step, therefore, in assessing what meaning to give to the VBA amendments to section 7261 involves examining the text of these amendments. The change intended by addition of the phrase “adverse to the claimant” is clear. Before the VBA this Court arguably had the authority to set aside a clearly erroneous finding of fact that benefitted a claimant. The Federal Circuit addressed an analogous issue when it determined that once a finding of well groundedness had been made (Under the law as it existed at that time, a finding of well groundedness was clearly a finding beneficial to the claimant.), the Court could not" }, { "docid": "11133780", "title": "", "text": "Fed.Reg. at 12,116. In examining the General Counsel opinion itself, the Court notes that that opinion, referring to paragraph 14.06 of part IV of the Veterans Benefits Administration Adjudication Procedure Manual M21-1 [hereinafter Manual M21-1], stated that a lack of accreditation of a school was a valid basis for VA to disapprove that school as an “educational institution.” G.C. Prec. 3-98 at 3. The opinion concluded: “We believe that these provisions in [Manual] M21-1 represent a substantive rule because they establish criteria for entitlement to compensation.” Id. at 4. The opinion concluded further that section 104(a), which gives the Secretary authority to “approve or disapprove such educational institutions,” would provide a legal basis for this substantive rule. Id. at 4-5. The opinion recommended that, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 552(a)(1) and 553, and 38 U.S.C. § 501, VA should promulgate a regulation that would specify the criteria for an educational institution that would satisfy the requirements of sections 101 (4)(A)(iii) and 104(a). Id. at 5. The regulation adopted by the Secretary, however, did not use accreditation as a basis to approve or disapprove a school and did not set forth explicit criteria for an “educational institution” that would satisfy sections 101 and 104. See 65 Fed.Reg. at 12,116. The General Counsel was correct in stating that a rule that “establish[es] criteria for entitlement to compensation,” as does the rule in § 3.57(a)(1)(iii), would represent a substantive rule. When published, however, the amendment claimed to be nonsubstantive in nature, even though it established a criterion for entitlement to compensation — it excluded home-school programs from the definition of “educational institution.” (We note that the failure of the amendment to adopt all the suggestions in the General Counsel opinion does not alter this analysis, because the amendment did establish criteria for entitlement to compensation.) Furthermore, by otherwise relying on the General Counsel’s definition of “educational institution,” the amendment erected several de facto criteria for entitlement to compensation, e.g., permanence of the institution, existing to serve the needs of more than one child, etc. Because the amendment established" }, { "docid": "2676454", "title": "", "text": "discharge or release from active duty”). Because Congress created what appear to be fixed periods of specific duration for all title 38 educational or vocational assistance programs except for the DEA program contained in chapter 35, as to which a more flexible period was created, the Court can assume only that Congress intended that DEA eligibility would not be limited to such a fixed period. See Saunders v. Secretary of Dept. of HHS, 25 F.3d 1031, 1036 (Fed.Cir.1994) (“if Congress had intended such a result, we believe that Congress would have made its intention clear in the statute”); Camarena v. Brown, 6 Vet.App. 565, 567 (1994) (where Congress uses “oblique language” in statute that otherwise contains specific language, Court assumes Congress did not intend a specific result). Because § 21.3046(c) imposes a 10-year limitation on the provision of DEA that was not contained in or authorized by 38 U.S.C. § 3512, or any other provisions of title 38 of which the Court is aware, we must hold, as we have held in similar cases in the past, that the regulation cannot stand. See, e.g., Skinner v. Brown, 27 F.3d 1571, 1575 (Fed.Cir.1994) (supporting the result of this Court’s decision in Cole v. Derwinski, 2 Vet.App. 400 (1992), aff'd, Cole v. Brown, 35 F.3d 551 (Fed.Cir.1994), to strike down limitation to title 38 benefit added by Secretary but not provided by statute); Gallegos v. Gober, 14 Vet.App. 50, 57 (2000) (striking down regulation promulgated by Secretary “to the extent that” that regulation “might be read as” adding requirement to those set forth in statute); Lee (Raymond) v. West, 13 Vet.App. 388, 394-95 (2000) (“any issuance by the Secretary of ... regulations ... may not be inconsistent with the statutory authority granted”); Davenport v. Brown, 7 Vet.App. 476, 482 (1995) (“[although] the Secretary is authorized to promulgate regulations that are consistent with title 38, U.S.Code, see 38 U.S.C. § 501(a), the Secretary is not authorized to disguise the creation of additional requirements or limitations as interpretative regulations” (citing, inter alia, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837," }, { "docid": "3655435", "title": "", "text": "Fed.Cl. 83, 87 (1999); Faust v. West, 13 Vet.App. 342, 350 (2000); cf. Davenport v. Brown, 7 Vet.App. 476, 483-84 (1995) (finding no “absurd result” in interpretation of other chapter 31 provision). Further, in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court provided the following guidance to reviewing courts: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress .... [H]owever, ... if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. at 842-43, 104 S.Ct. 2778 (footnotes omitted). Section 1151 states that a veteran who was injured as the result of “the pursuit of a course of vocational rehabilitation,” shall be awarded disability compensation. However, neither section 1151 nor any other section in title 38 provides a meaning for the phrase “the pursuit of a course of vocational rehabilitation.” Further, as the General Counsel acknowledged in her opinion, and as both parties agreed at oral argument, Congress has not defined this phrase in the statute and there is no legislative history defining what Congress meant by “the pursuit of a course of vocational rehabilitation.” Therefore, the Court must look to the agency’s interpretation, if any, of the phrase. See Chevron, supra. In this regard, the pertinent regulations prescribed by VA with respect to chapter 31 and section 1151, as quoted above, do not provide a meaning of “the pursuit of a course of vocational rehabilitation.” See 38 C.F.R. §§ 21.35(f), (i), 21.210, 21.268(a), 21.283. However, the regulation at 38 C.F.R. § 21.35(i) does define a “vocational rehabilitation program” in the same terms as does 38 U.S.C. § 3101(9)(A)(ii)." }, { "docid": "2676456", "title": "", "text": "844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))). To the extent that the Secretary’s regulation may have been an attempt to fill a perceived gap in the statute — and, based on our review, above, of similar provisions within title 38 (i.e., 38 U.S.C. §§ 3031(a), 3103(a), 3232(a)(1), 3462(a)(1)), the Court is by no means convinced that any gap is present therein— the Court nonetheless is required to construe such remedial provisions liberally in favor of the beneficiary of the legislation in question. See Gallegos, 14 Vet.App. at 56 (Secretary may not create obligations not set forth in statute under guise of filling nonexistent gap in that statute); Lee (Raymond), 13 Vet.App. at 395-96 (reviewing “statutory scheme at issue” in that case and concluding that Congress therein “demonstrated that it knew well how to provide time restrictions as to the submission of applications” and thus Secretary’s imposition of time restriction was unlawful when Congress had not similarly provided for such time restriction); Bernier v. Brown, 7 Vet.App. 434, 438 (1995) (holding Secretary’s gap-filling regulation in question was “inconsistent with the statute and cannot stand”); cf. Gardner I and II, both supra (holding that deference is not due to VA regulation that is contrary to meaning of text of statute); Disabled American Veterans v. Gober, 234 F.3d 682, 691-92 (Fed.Cir.2000) (“Chevron deference applies if congress is either silent or unclear on a particular issue”). Hence, the Court holds that the appellant’s eligibility for DEA had not terminated as of the date that she submitted her application for DEA for classes beginning in August 1994, and the Court will reverse the BVA decision in that regard and remand the matter for appropriate further adjudication consistent with our determination that the appellant’s DEA delimiting period has not expired. The Court notes that the parties do not dispute the Board’s determination that the appellant’s DEA-eligibility period had begun on a date prior to August 1994 and, therefore, that issue is not before the Court today. III. Conclusion Upon consideration of the foregoing analysis, the ROA, and the submissions of the parties, the Court reverses" }, { "docid": "11133758", "title": "", "text": "GREENE, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed a concurring opinion. GREENE, Judge: Veteran George R. Theiss appeals, through counsel, an April 6, 2001, decision by the Board of Veterans’ Appeals (Board) that determined that he was not entitled to additional non-service-connected pension benefits for dependents under section 1521(c) of title 38, U.S.Code, for his 18-year-old son, who was attending a State-of-Wisconsin-approved home school. Record (R.) at 6. The Board found that Mr. Theiss’s son was not a “child” as defined by section 101(4)(A)(iii) of title 38, U.S.Code, and 38 C.F.R. § 3.57 (2000), on the basis that he was not attending an approved educational institution for VA purposes. R. at 4-5. Mr. Theiss argues that the statutory provisions (i.e., 38 U.S.C. §§ 101(4) and 104) in question are ambiguous; that any such interpretive doubt should be resolved in his favor, see Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); and that the Secretary’s implementation of these statutory provisions through his promulgation of 38 C.F.R. § 3.57(a)(1)(iii) (2001), a March 2000 regulatory amendment based on a March 1998 VA General Counsel precedent opinion (VA Gen. Coun. Prec. 3-98 (March 19, 1998) [hereinafter G.C. Prec. 3-98]), is erroneous and thwarts the legislative intent. Appellant’s (App.) Brief (Br.) at 3. He contends also that 38 C.F.R. § 3.57 should be invalidated to the extent that it excludes home-schooled children from the definition of “child.” Mr. Theiss seeks a reversal of the Board decision and an award of benefits. Reply Br. at 10. This appeal is timely, and the Court has jurisdiction under 38 U.S.C. §§ 7252(a) and 7266. For the following reasons, the Board decision will be vacated and the matter remanded for further adjudication. I. FACTS The facts are not in dispute. Mr. Theiss served honorably in the U.S. Armed Forces on two occasions. From June 1967 to July 1969, he served in the U.S. Marine Corps, including service in Vietnam (R. at 10), and from December 1976 to December 1977, he served in the U.S. Army (R. at 9). In" }, { "docid": "11133767", "title": "", "text": "an operative term, that may leave a “gap” in the statute, and the Secretary may undertake to fill that gap, but may not add requirements or limitations to those set forth in the statute. See Ozer v. Principi, 14 Vet.App. 257, 264 (2001); Davenport v. Brown, 7 Vet.App. 476, 482 (1995). Here, the Secretary has attempted to fill that gap through the General Counsel opinion and through the subsequent amendment to § 3.57(a) (1) (iii). See 65 Fed.Reg. at 12,116. In the precedent opinion, the General Counsel addressed the question “[w]hether a person who is between 18 and 23 years of age and is pursuing a high school education in a home-school program is pursuing a course of instruction at an educational institution for purposes of 38 U.S.C. § 101 (4)(A)(iii).” G.C. Prec. 3-98, at 1. The General Counsel’s opinion answered that question by concluding that a home-school program did not fit within the statu tory scheme of section 101(4)(A)(iii) because “the program terminates when the child completes his or her course of instruction or withdraws, does not have an ongoing enrollment, and is operated for the sole purpose of serving the needs of a particular student.” Id. at 3. In reaching this conclusion, the General Counsel expressly relied upon the definition of “institution” in Webster’s Ninth New Collegiate Dictionary [hereinafter Webster’s ] (defining “institution” as an “established organization or corporation (as a college or university) especially] of a public character”), and gave Webster’s meaning of that term to the term “educational institution” in 38 U.S.C. § 101 (4)(A)(iii). Id. at 2. Further, placing special emphasis on the term “established organization,” the General Counsel then opined that “[t]he word ‘established’ implies a degree of permanency,” and the word “organization” involves a group of people with more or less constant membership. Id. (citing Black’s Law Dictionary [hereinafter Black’s] 546 (6th ed.1990) and Webster’s Third New International Dictionary 1590 (1976) [hereinafter Webster’s], respectively). Applying that definition, the General Counsel determined that a home-school program did not meet the definition in section 101 (4) (A) (iii) of “educational institution” because it is operated" }, { "docid": "11133788", "title": "", "text": "Veterans of Amer. (PVA) v. West, 138 F.3d 1434, 1435 (Fed.Cir.1998). Substantive, or legislative, rules are “those that effect a change in existing law or policy or which affect individual rights and obligations.” PVA 138 F.3d at 1436. Section 553 of title 5, U.S.Code, provides procedures for notice and rulemaking with which VA is required to comply. See 5 U.S.C. § 553(b)-(e); PVA supra. In G.C. Prec. 3-98, the General Counsel excludes home schools from the definition of “educational institution,” 38 U.S.C. § 101(4)(A)(iii), which exclusion renders claimants with home-schooled children, between 18 and 23 years old, ineligible to receive benefits for those children pursuant to 38 U.S.C. § 1521(c) or 38 U.S.C. § 1115. Thus, because VA, in G.C. Prec. 3-98, has so limited eligibility for VA benefits, VA “effected] a change in existing law or policy or [VA] ... affect[ed] individual rights and obligations.” PVA, 138 F.3d at 1436. Further, the General Counsel, in his opinion, appears to concede that provisions related to the approval of educational institutions may be legislative because “they establish criteria for entitlement to compensation.” G.C. Prec. 3-98 at 3-4. However, VA did not publish the entire text of G.C. Prec. 3-98 in the Federal Register. See 5 U.S.C. § 552(a)(1). Thus, I believe that G.C. Prec. 3-98 is legislative in nature and, because VA failed to follow the APA’s notice and rulemaking procedures, it is invalid. See 5 U.S.C. § 553; Splane, supra; Fugere, 1 Vet.App. at 109-11. Similarly, VA revised 38 C.F.R. § 3.57(a)(1)(iii) based on G.C. Prec. 3-98 and published that revision only as a final rule in the Federal Register. See 65 Fed.Reg. 12,116 (Mar. 8, 2000). That regulation defines the term “child,” inter alia, as a person “[w]ho, after reaching the age of 18 years and until completion of education or training ... is pursuing a course of instruction at an approved educational institution.” 38 C.F.R. § 3.57(a)(1)(iii). That revised regulation further provides that “the term educational institution .... does not include home-school programs.” Id. The effect of this revision also is to limit claimants’ eligibility to receive benefits" }, { "docid": "12692277", "title": "", "text": "Rule 46 further requires that “[e]ach notice of appearance and pleading filed by a non-attorney practitioner must include the name, address, and signature of the responsible supervising attorney under subsection (b)(1) or the identification of the employing organization under subsection (b)(2).” U.S. Vet.App. R. 46(d)(3). The Court has held that the work of attorney-supervised non-attorney practitioners and attorney-supervised law students is “com-pensable under the EAJA at an appropriate rate”. McCracken v. Principi, 14 Vet.App. 269, 274 (2001) (citing Sandoval v. Brown, 9 Vet.App. 177, 181 (1996) (holding EAJA fees available for work of attorney-supervised law students)). “ ‘The starting point in interpreting a statute is its language.’ ” Lee (Raymond) v. West, 13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)). As this Court explained in Lee: The “plain meaning [of a statute] must be given effect unless a ‘literal application of [the] statute [or regulation] will produce a result demonstrably at odds with the intention of its drafters.’ ” Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd [sub nom. Brown v. Gardner], 513 U.S. 115[, 115 S.Ct. 552, 130 L.Ed.2d 462] (1994); Fagan [v. West], 13 Vet. App. [48,] 52 [(1999)]; Curtis [v. West], 11 Vet.App. [129,] 133 [(1998)]. “If the intent of Congress is clear, that is the end of the matter”. Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (quoting Chevron, U.S.A., Inc. v. Natural Res[.] Def[.] Council, Inc., 467 U.S. 837, 842[, 104 S.Ct. 2778, 81 L.Ed.2d 694] (1984)), aff'ing 4 Vet.App. 141 (1993) (mem.). Lee (Raymond), supra. Each “part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole.” Meeks v. West, 12 Vet.App. 352, 354 (1999) (internal quotation and citation omitted); see also Cottle v. Principi, 14 Vet.App. 329, 334 (2001); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992). Aso, as the United States Supreme Court stated in United States v. Nordic Village, “the settled rule [is]" }, { "docid": "11133789", "title": "", "text": "establish criteria for entitlement to compensation.” G.C. Prec. 3-98 at 3-4. However, VA did not publish the entire text of G.C. Prec. 3-98 in the Federal Register. See 5 U.S.C. § 552(a)(1). Thus, I believe that G.C. Prec. 3-98 is legislative in nature and, because VA failed to follow the APA’s notice and rulemaking procedures, it is invalid. See 5 U.S.C. § 553; Splane, supra; Fugere, 1 Vet.App. at 109-11. Similarly, VA revised 38 C.F.R. § 3.57(a)(1)(iii) based on G.C. Prec. 3-98 and published that revision only as a final rule in the Federal Register. See 65 Fed.Reg. 12,116 (Mar. 8, 2000). That regulation defines the term “child,” inter alia, as a person “[w]ho, after reaching the age of 18 years and until completion of education or training ... is pursuing a course of instruction at an approved educational institution.” 38 C.F.R. § 3.57(a)(1)(iii). That revised regulation further provides that “the term educational institution .... does not include home-school programs.” Id. The effect of this revision also is to limit claimants’ eligibility to receive benefits for this group of home-schooled children. Thus, because this promulgation excludes certain home-schooled children from the definition of child, it “affect[ed] individual rights and obligations,” PVA 138 F.3d at 1436, and, as the majority holds, it too is legislative. See ante at 214. However, in revising § 3.57(a)(1)(iii), VA “dispense[d] with prior notice and comment.” 65 Fed.Reg. at 12,116. Hence, because VA did not follow the notice and rulemaking procedures, I agree with the majority that this promulgation is invalid. See 5 U.S.C. § 553; Fugere, supra. Thus, because the analysis in the April 2001 Board decision rests upon these two invalid issuances, the decision must be vacated and the matter remanded. See Best v. Principi, 15 Vet.App. 18, 19 (2001) (per curiam order) (“[I]t has been the practice of this Court that[,] when a remand is ordered because of an undoubted error that requires such a remedy, the Court will not, as a general rule, address other putative errors raised by the appellant.” (citing Dunn v. West, 11 Vet.App. 462, 467 (1998))); Fugere, supra." }, { "docid": "2676455", "title": "", "text": "the past, that the regulation cannot stand. See, e.g., Skinner v. Brown, 27 F.3d 1571, 1575 (Fed.Cir.1994) (supporting the result of this Court’s decision in Cole v. Derwinski, 2 Vet.App. 400 (1992), aff'd, Cole v. Brown, 35 F.3d 551 (Fed.Cir.1994), to strike down limitation to title 38 benefit added by Secretary but not provided by statute); Gallegos v. Gober, 14 Vet.App. 50, 57 (2000) (striking down regulation promulgated by Secretary “to the extent that” that regulation “might be read as” adding requirement to those set forth in statute); Lee (Raymond) v. West, 13 Vet.App. 388, 394-95 (2000) (“any issuance by the Secretary of ... regulations ... may not be inconsistent with the statutory authority granted”); Davenport v. Brown, 7 Vet.App. 476, 482 (1995) (“[although] the Secretary is authorized to promulgate regulations that are consistent with title 38, U.S.Code, see 38 U.S.C. § 501(a), the Secretary is not authorized to disguise the creation of additional requirements or limitations as interpretative regulations” (citing, inter alia, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))). To the extent that the Secretary’s regulation may have been an attempt to fill a perceived gap in the statute — and, based on our review, above, of similar provisions within title 38 (i.e., 38 U.S.C. §§ 3031(a), 3103(a), 3232(a)(1), 3462(a)(1)), the Court is by no means convinced that any gap is present therein— the Court nonetheless is required to construe such remedial provisions liberally in favor of the beneficiary of the legislation in question. See Gallegos, 14 Vet.App. at 56 (Secretary may not create obligations not set forth in statute under guise of filling nonexistent gap in that statute); Lee (Raymond), 13 Vet.App. at 395-96 (reviewing “statutory scheme at issue” in that case and concluding that Congress therein “demonstrated that it knew well how to provide time restrictions as to the submission of applications” and thus Secretary’s imposition of time restriction was unlawful when Congress had not similarly provided for such time restriction); Bernier v. Brown, 7 Vet.App. 434, 438 (1995) (holding Secretary’s gap-filling regulation in" }, { "docid": "12692278", "title": "", "text": "Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd [sub nom. Brown v. Gardner], 513 U.S. 115[, 115 S.Ct. 552, 130 L.Ed.2d 462] (1994); Fagan [v. West], 13 Vet. App. [48,] 52 [(1999)]; Curtis [v. West], 11 Vet.App. [129,] 133 [(1998)]. “If the intent of Congress is clear, that is the end of the matter”. Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (quoting Chevron, U.S.A., Inc. v. Natural Res[.] Def[.] Council, Inc., 467 U.S. 837, 842[, 104 S.Ct. 2778, 81 L.Ed.2d 694] (1984)), aff'ing 4 Vet.App. 141 (1993) (mem.). Lee (Raymond), supra. Each “part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole.” Meeks v. West, 12 Vet.App. 352, 354 (1999) (internal quotation and citation omitted); see also Cottle v. Principi, 14 Vet.App. 329, 334 (2001); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992). Aso, as the United States Supreme Court stated in United States v. Nordic Village, “the settled rule [is] that a statute must, if possible, be construed in such fashion that every word has some operative effect.” Nordic Vill., 503 U.S. 30, 35, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); see Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (determining that it is an “elementary canon of construction that a statute should be interpreted so as not to render one part inoperative”). Athough, where Congress has by statute directly addressed an issue, the reviewing court “ ‘must give effect to the unambiguously expressed intent of Congress’ ”, Cottle, supra (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778); see also Barnhart v. Walton, 535 U.S. 212, 217-18, 122 S.Ct. 1265, 152 L.Ed.2d 380 (2002), where a statute is ambiguous, “interpretive doubt is to be resolved in the veteran’s favor.” Brown, 513 U.S. at 118, 115 S.Ct. 552; see also Allen (Alfred) v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (applying Brown v. Gardner principle to rule in appellant’s favor on question of statutory interpretation). As noted above," } ]

[ { "docid": "13607465", "title": "", "text": "PER CURIAM: Donald Frederick DeLongchamps, Joseph John Russo and Harvey Mick appeal their convictions in the United States District Court for the Southern District of Florida, for offenses involving methaqualone. 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Error is assigned on the district court’s failure to follow the mandate of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and other grounds. Because we reverse for the Speedy Trial Act violations, we do not reach the other alleged errors on appeal. The appellants were indicted on December 2, 1980, and arraigned on December 8, 1980. All were initially represented by the same attorney, but DeLongchamps later retained separate counsel on December 29, 1980. On December 31, 1980, some 32 motions were filed on behalf of DeLongchamps. These were transmitted to the magistrate on January 5, 1981. On January 23, 1981, the magistrate disposed of the motions with the exception of the James motion, United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), which was referred to the district court. Record, vol. 2, at 204. This motion was carried with the trial. On May 19,1981, the district court filed a notice of jury trial during the two-week period beginning June 23, 1981. On June 11, 1981, all the defendants submitted a motion for a continuance, which was accompanied by waivers stating “I HEREBY waive speedy trial on the above entitled cause.” On June 22, 1981, the trial court denied this motion. On July 1, 1981, the defendants filed a “motion for clarification” to determine whether the magistrate’s January 23, 1981 order applied to all the defendants or to DeLongchamps only. On the same day, the district court ruled that the order was intended to cover all defendants. At a calendar call held on July 6, 1981, DeLongchamps’ attorney announced that he was now representing Russo as well. Record, vol. 3, at 4. He raised the issue of dismissal for violation of the Speedy Trial Act by oral motion at several points during the calendar call." } ]

[ { "docid": "22832751", "title": "", "text": "The government argues the exclusion of a total of ninety-seven days covering three discrete periods: forty-one days (March 13 to April 22) for motions practice before the magistrate, section 3161(h)(1)(F); twenty-six days (April 22 to May 18) during which the magistrate had the motions under advisement, § 3161(h) (1)(J); and thirty days (June 2 to July 1) during which the magistrate’s report and recommendation was under advisement by the district court, § 3161(h)(l)(J). We agree that the time was properly ex-cludable. Appellants dispute two categories of exclusion. First, they argue that section 3161(c)(2), which provides that trial must commence “not less than thirty days from the date on which the defendant first appears through counsel,” prohibits exclusion of any time occurring within that first thirty days following a defendant’s first appearance. Appellants contend that otherwise excludable delay resulting from pretrial motions filed by defendants and pending within that thirty day period should not be deemed excludable. Of the total of forty-one days excluded time attributed to defense motions, eight days (March 13 to March 20) fell within the initial thirty day period covered by section 3161(c)(2). Appellants do not dispute the exclusion of other time within this forty-one day period. Appellants’ position finds support in neither the language, legislative history nor policy of the provision. Section 3161(c)(2), added to the Act by Congress in 1979, by its terms speaks to the time during which trial may not commence absent waiver by a defendant of his speedy trial right. See Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended 12-13 (1979) (hereinafter cited as Judicial Guidelines). The section is not addressed to the computation of the overall time period during which trial must commence. Even if this language is arguably ambiguous, the legislative history is not. The legislative history leaves no doubt that the purpose behind subsection (c)(2) was to prevent a trial from being held so quickly that a defendant would not have time to prepare. Section 3161(c)(2) was added" }, { "docid": "23506621", "title": "", "text": "PER CURIAM: Joseph Russo appeals his conviction in the United States District Court for the Southern District of Florida on several drug offenses involving methaqualone. 21 U.S.C. §§ 841(a)(1), 846. In this court, he asserts that the district court abused its discretion by dismissing an earlier indictment without prejudice, thereby authorizing his reprosecution and subsequent conviction. Agreeing with Russo’s contention that the district court abused its discretion, we reverse. This case has a fairly detailed procedural history, much of which is relevant to our disposition of the present appeal. On December 2, 1980, three defendants, Donald DeLongchamps, Harvey Mick and the appellant herein, Joseph Russo, were indicted for several drug-related charges. Arraignment followed on December 8, 1980. On December 31, 1980, thirty-two motions were filed on behalf of the various defendants. The magistrate assigned to the case disposed of all but one of the motions on January 23, 1981. The remaining motion for a hearing pursuant to United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert, denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979) was referred to the court and “carried with the trial.” On June 22, 1981, defense counsel filed a motion for a continuance which was accompanied by the defendants’ speedy trial waivers. The court denied the continuance and trial began on July 8,1981. Russo and DeLongchamps both were convicted and then appealed claiming a violation of the Speedy Trial Act (Act). 18 U.S.C. §§ 3161— 3174. Before a panel of this court, the government took the position that by carrying of the motion for a James hearing until the trial, it remained under advisement by the court and thereby tolled the time constraints of the statute so that trial had commenced well within the seventy-day, statutory time period. The DeLongch-amps court disagreed with this contention, however, pointing to the clear language of § 3161(h)(l)(J) which limits the maximum excludable time allowable for any matter taken under advisement by the court to thirty days. The court then found that the total excludable time in that case was thirty days. Because trial took" }, { "docid": "23133105", "title": "", "text": "of a pretrial motion and taking it under advisement. As pointed out by Judge Keeton of the Massachusetts District Court, the exclusion in the Massachusetts Plan, as well as the Act, of all time between the filing of pretrial motions and their disposition would allow a district court judge to intentionally defer hearings on motions to avoid the time pressures of the Act. United States v. Hawker, 552 F.Supp. 117, 124 (D.Mass.1982). Defendant makes two contentions, that the motions reserved for the trial court were not pretrial motions and that a thirty-day limit of excludable time should be imposed on the delay between the filing of a pretrial motion and its disposition. There is little merit in defendant’s position that the motions to suppress lost their pretrial character because the magistrate reserved them for hearing by the court. Federal Rule of Criminal Procedure 12(b)(3) specifically defines motions to suppress evidence as pretrial motions. We must assume that Congress was aware of this rule when the Act was drafted. See United States v. Cobb, 697 F.2d 38, 42 (2d Cir.1982). In United States v. Mers, 701 F.2d 1321, 1335-37 (11th Cir.1983), the court held that the thirty-day excludable delay period for a proceeding under advisement, section 3161(h)(l)(J), applies separately to the magistrate and trial judge, permitting two thirty-day periods for consideration of the same matter. Here, the motions to suppress were not considered or acted upon by the magistrate. In urging a thirty-day limitation for hearing pretrial motions, defendant would have us engraft the thirty-day limit of section 3161(h)(l)(J) onto section 3161(h)(1)(F). The delay excludable under (J) is “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.” Although we have found several cases holding that the thirty-day limit of (J) is applicable to pretrial motions taken under advisement, we have found none applying it to the period between filing and hearing. We agree with Judge Keeton that it would be inappropriate to apply the fixed thirty-day (J) limitation to (F), neither the Act nor the" }, { "docid": "22832769", "title": "", "text": "to dismiss for failure to comply with the Speedy Trial Act, stated unmistakably that “during this period of time [between submission of the magistrate’s report and recommendation and the court’s adoption of the report] the Magistrate’s Report was under advisement. Thirty days of this period is excluded in computing the time within which the trial must commence. See 18 U.S.C. § 3161(h)(l)(J).” The legitimacy of the thirty day exclusion is in no way negated by the fact that the court did eventually adopt the recommendations of the magistrate. The district judge had several motions to review and resolve, and we decline to inquire whether that process should have taken her the full thirty days. See Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 694 (1976) (“the judge himself will determine whether the period of delay meets this definition and there is nothing to prevent judges from routinely taking all motions ‘under advisement’ for the maximum of 30 days”). Appellants stress the statutory language of section 3161(h)(l)(J) that the court must have the pretrial motions “actually under advisement” before the time is deemed excludable. From this language they argue that unless the district judge can demonstrate that she was actually reviewing a particular matter and can show the precise amount of time she spent on this review, then the time is not excludable; to be excludable under section 3161(h)(l)(J), the time must be reasonably attributable to the decisionmaking process. Such an approach would require appellate courts to evaluate the relative merit of pretrial motions to determine how much “advisement” was appropriate by the district court. Appellants apparently would require the district court to keep a daily log to keep account of the amount of time spent on each pretrial motion. We cannot read this much into the words “actually under advisement.” While the section does require that the under advisement period be reasonable, we leave determination of the reasonableness issue to the sound discretion of the trial judge. The section cannot mean that the district judge must demonstrate that she was actually considering the matter on every excludable day." }, { "docid": "22892244", "title": "", "text": "necessary. After February 5, the case became lost in an administrative shuffle and was found by the trial court’s new minute clerk in mid-April. A status hearing took place on April 16. This significant period of indefinite postponement cannot be deemed reasonably necessary. The trial court thus erred in excluding this delay from the computation of the seventy-day allowable limit between arraignment and trial. The next contested period of delay began after both parties submitted their post-hearing briefs. The defendant contends that the day on which the briefs were submitted, August 6, 1982, began the period during which the trial court had the motion under advisement. The defendant further argues that since, under section 3161(h)(l)(J) of the Act, only thirty days of this period were excludable from the computation of the seventy-day allowable time limit between arraignment and trial, the trial court improperly excluded the period between September 5, 1981, and December 13, 1981, the date on which the motion was denied. Courts in a number of circuits have ruled that section 3161(h)(l)(J) operates to exclude thirty days of the time during which a court has a pretrial motion under advisement (the period after the briefs dealing with a pretrial motion have been submitted and the hearing, if any, has been held). See United States v. Bufalino, 683 F.2d 639, 644-45 (2d Cir.1982), cert. denied, _ U.S. _, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983); United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982); United States v. Scott, 557 F.Supp. 990, 994 (W.D.Va.1983). Until 1982, this court had never discussed the issue. Then, in United States v. Rained, 670 F.2d 702, 708 (7th Cir.1982), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1983), this court cited to sections 3161(h)(1)(F) & (J) in deciding that, where a magistrate had pretrial motions under advisement for seventy-nine days, it was reasonable to exclude only thirty of those days from the computation of the allowable seventy days between arraignment and trial. Furthermore, in addition to the thirty days excludable under section 3161(h)(l)(J), it is clear that the statute allows further" }, { "docid": "130258", "title": "", "text": "18 days were involved here, only 14 may be excluded for this period because four overlap with the above exclusion. Thus, the district court correctly allowed a total of 43 days of excludable time for the defendants’ pretrial motions that were ruled on by the magistrate. 18 U.S.C.A. § 3161(h)(1)(F). The question, then, becomes whether the magistrate’s deferral of the certain pretrial motions to the trial court resulted in excludable time. On March 31,1983, the magistrate deferred Pirolli’s March 23 motion for a James hearing to the trial court. On April 25, 1983, in addition to a James motion, several other motions of Otalora were also deferred to .the trial court: motions to prohibit prior jury service in a similar case, to examine prospective jurors, for ordering Government’s proof or for separate hearing to determine existence of conspiracy and to compel disclosure of United States Attorney’s jury selection data. We need not decide whether any excludable time should be attributed to these motions under § 3161(h)(l)(J), pursuant to which the district court added 30 days of excludable time. See United States v. Mers, 701 F.2d 1321, 1338-39 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983) (holding that where the magistrate conducted the suppression hearing on April 22 and issued his report and recommendations on May 18, the magistrate and the district court had 30 days each during which to take pretrial motions under advisement pursuant to § 3161(h)(l)(J)). • In United States v. Mastrangelo, 733 F.2d 793 (11th Cir.1984), a motion to suppress evidence because of an alleged illegal search was referred by the magistrate to the trial court. This Court held that the period from the filing of the motion until the conclusion of the suppression hearing was excludable time pursuant to § 3161(h)(1)(F). 733 F.2d at 796. A James motion and a Fourth Amendment suppression motion are procedurally alike. Both call for a hearing. Thus, the decision in Mastrangelo controls the issue here. We need not decide whether any of the time between March 23, 1983, the filing date of Pirolli’s motion," }, { "docid": "22832761", "title": "", "text": "excludable under section 3161(h)(l)(J). Section 3161(h)(l)(J) provides for the exclusion of “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.” Appellants dispute the exclusions on two grounds. First, they argue that section 3161(h)(l)(J) permits only a total of thirty days under advisement for both the magistrate and the district court. This is an issue of first impression. Although in United States v. Delongchamps, 679 F.2d 217, 219-20 (11th Cir.1982) we observed that section 3161(h)(l)(J) permits the magistrate a maximum of thirty days during which to take motions under advisement, see also United States v. Raineri, 670 F.2d at 707 (holding that section 3161(h)(l)(J) allows thirty day exclusion for magistrate having motions under advisement), this does not resolve the issue of whether the district court then may take an additional excludable thirty day under advisement period of its own for consideration of the same motion. The magistrate spent a total of sixty-seven days dealing with the motions. Forty-one of those days (March 13 through April 22) were excludable as motions practice under section 3161(h)(1)(F). Appellants correctly argue that the excludable time under section 3161(h)(1)(F) ended on April 22, when the magistrate learned that a suppression hearing would not be necessary and when he orally advised the parties of the recommendations that he intended to make in his report and recommendation. The Judicial Guidelines at 33 recommend that the “exclusion for delay resulting from pretrial motions be treated as ending at such time as the court has received everything it expects from the parties before reaching a decision — that is, such date as all anticipated briefs have been filed and any necessary hearing has been completed. Thereafter, the matter should be treated as ‘under advisement’ and subject to the rules of subparagraph (J).” Section 3161(h)(1)(F) and section 3161(h)(l)(J) dovetail; the former ends when the latter begins. Thus the Judicial Guidelines at 42 recommend that the “under advisement period” of section 3161(h)(l)(J) begins on “the day following the date on which the court has received everything" }, { "docid": "130256", "title": "", "text": "the time computations between the indictment on March 9, 1983 and the trial on July 25, 1983, leaving only 65 includable days, there was no Speedy Trial Act violation. The record shows that pretrial motions were filed by Pirolli on March 16 and March 23, 1983: to retain rough notes, for a bill of particulars, to compel disclosure of favorable evidence, for a list of witnesses, to dismiss the indictment, for a James hearing, to require Government to give notice of hearsay sought to be introduced, to require production of statements sought to be admitted, to require witnesses to examine and ratify prior statements and for additional time after discovery. The court ruled on all motions on April 1,1983 except for a deferral to the trial court of the James motion. Both the day of filing the motions and the day of decision are excluded from the time computations. See United States v. Severdija, 723 F.2d 791, 793 (11th Cir.1984). Pursuant to 18 U.S.C.A. § 3161(h)(1)(F), 17 days from March 16 to April 1 are excluded from the computations. Within that period the motions to reduce bond for Galardo and Otalora were also under consideration, filed on March 25 and 26 and decided on March 31. See 18 U.S.C.A. § 3161(h)(1)(F). Otalora filed a variety of pretrial motions on April 14,1983. Anything which “stops the clock” for one defendant does so for the same amount of time as to all co-defendants. United States v. Severdija, 723 F.2d at 793. The motions were decided on April 25, 1983 except for a deferral to the trial court of the James hearing, and the motions to compel disclosure of U.S.A. jury selection data, to prohibit prior jury service in similar case, to examine prospective jurors, for ordering Government’s proof or for separate hearing to determine existence of conspiracy, and motion in limine. 12 days are excluded for the pretrial motions decided on April 25. 18 U.S.C.A. § 3161(h)(1)(F). Galardo filed a motion on April 22, 1983 for the Government to produce Brady material. The court granted the motion on May 9, 1983. Although" }, { "docid": "22832760", "title": "", "text": "suppression hearing, the magistrate orally informed the parties that he deemed all of the motions except one moot. On May 18, the magistrate issued his report and recommendation, in which he recommended that the district court dismiss as moot all motions save one. The magistrate deferred one of Herman Mers’ motions to the district court judge for her consideration and gave the parties ten days to object before submitting his report to the court, as required by the Federal Magistrate’s Act. 28 U.S.C. § 636(h)(1). No party objected and the report was submitted on June 2. The court adopted the magistrate’s report on August 3. The forty-one days for motions practice (March 13 to April 22) were properly excluded under section 3161(h)(1)(F); this is not challenged. Although appellants raise creative arguments to the contrary, we hold that the twenty-six days during which the magistrate had the motions under advisement (April 22 to May 18) and thirty of the days during which the district court had the motions under advisement (June 2 to July 1) were excludable under section 3161(h)(l)(J). Section 3161(h)(l)(J) provides for the exclusion of “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.” Appellants dispute the exclusions on two grounds. First, they argue that section 3161(h)(l)(J) permits only a total of thirty days under advisement for both the magistrate and the district court. This is an issue of first impression. Although in United States v. Delongchamps, 679 F.2d 217, 219-20 (11th Cir.1982) we observed that section 3161(h)(l)(J) permits the magistrate a maximum of thirty days during which to take motions under advisement, see also United States v. Raineri, 670 F.2d at 707 (holding that section 3161(h)(l)(J) allows thirty day exclusion for magistrate having motions under advisement), this does not resolve the issue of whether the district court then may take an additional excludable thirty day under advisement period of its own for consideration of the same motion. The magistrate spent a total of sixty-seven days dealing with the motions. Forty-one of those" }, { "docid": "22832750", "title": "", "text": "a lawyer represents more than one defendant, he is precluded from ‘shifting the blame’ to the client against whom the government presents the stronger case.” Benavidez, 664 F.2d at 1260. (2) Speedy Trial Act Herman and Lester Mers contend that their trial did not commence within the period required by the Speedy Trial Act. 18 U.S.C. §§ 3161-68. The Act mandates that defendants be brought to trial 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 the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(e)(1). The accounting of time under the Act is subject to excludable delay attributable to the defendant as well as other particularized delays set out in section 3161(h)(1). In the present case, we assume that the seventy day period began to run on March 2,1981, the date on which appellants were arraigned. See note 6, infra. Trial commenced on August 5, 156 days after arraignment. The government argues the exclusion of a total of ninety-seven days covering three discrete periods: forty-one days (March 13 to April 22) for motions practice before the magistrate, section 3161(h)(1)(F); twenty-six days (April 22 to May 18) during which the magistrate had the motions under advisement, § 3161(h) (1)(J); and thirty days (June 2 to July 1) during which the magistrate’s report and recommendation was under advisement by the district court, § 3161(h)(l)(J). We agree that the time was properly ex-cludable. Appellants dispute two categories of exclusion. First, they argue that section 3161(c)(2), which provides that trial must commence “not less than thirty days from the date on which the defendant first appears through counsel,” prohibits exclusion of any time occurring within that first thirty days following a defendant’s first appearance. Appellants contend that otherwise excludable delay resulting from pretrial motions filed by defendants and pending within that thirty day period should not be deemed excludable. Of the total of forty-one days excluded time attributed to defense motions, eight days (March 13 to March 20)" }, { "docid": "130255", "title": "", "text": "would not be useful. Under the totality of the circumstances, the “mere presence” argument of Otalora and Galardo was for the jury, not the court. Pirolli’s entrapment defense was undermined by the fact he was able to locate two separate sources for a large quantity of cocaine within twenty-four hours time. Speedy Trial Act Pirolli contends the trial did not commence within the 70-day period required by the Speedy Trial Act. 18 U.S.C.A. §§ 3161-74. The accounting of time under the Act is subject to excludable delay attributable to the defendant as well as other activities set out in section 3161(h)(1). The first day of the 70-day period was the day after the March 9 indictment because that date followed his first appearance before a judicial officer. United States v. Severdija, 723 F.2d 791, 793 (11th Cir.1984). The trial commenced on July 25, so there could be 138 days for Speedy Trial Act purposes if no days were excluded. Since under the statute and our decided cases there were at least 73 days excludable from the time computations between the indictment on March 9, 1983 and the trial on July 25, 1983, leaving only 65 includable days, there was no Speedy Trial Act violation. The record shows that pretrial motions were filed by Pirolli on March 16 and March 23, 1983: to retain rough notes, for a bill of particulars, to compel disclosure of favorable evidence, for a list of witnesses, to dismiss the indictment, for a James hearing, to require Government to give notice of hearsay sought to be introduced, to require production of statements sought to be admitted, to require witnesses to examine and ratify prior statements and for additional time after discovery. The court ruled on all motions on April 1,1983 except for a deferral to the trial court of the James motion. Both the day of filing the motions and the day of decision are excluded from the time computations. See United States v. Severdija, 723 F.2d 791, 793 (11th Cir.1984). Pursuant to 18 U.S.C.A. § 3161(h)(1)(F), 17 days from March 16 to April 1 are" }, { "docid": "22892217", "title": "", "text": "States v. Raineri, 670 F.2d 702, 708 (7th Cir.1982); United States v. Bufalino, 683 F.2d 639, 642-44 (2d Cir.1982); United States v. Cobb, supra, 697 F.2d at 43; United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982). If 30 days is too little to dispose of a particular pretrial motion, the judge can grant a continuance either on his own motion or on that of counsel for either party. Thus, from the time the district judge took Janik’s motion under advisement after the filing of the last post-hearing briefs on August 6 she had 30 days to decide it unless she granted a continuance under section 3161(h)(8)(A), which she did not do. Hence the period of excludable time for deciding the motion ended September 5. We have treated the interval between November 12 and December 13 separately for two reasons. First, it can be argued that the period from November 12 (when the hearing was ordered reopened) to December 2 (when the reopened hearing was held) was excludable under section 3161(h)(1)(F) as a period between the filing of and hearing on a pretrial motion, and that the period from December 2 to December 13 (when the motion was finally denied) was a period of less than 30 days in length during which the motion was under advisement. But if, as noted earlier, the requirement of prompt disposition in section 3161(h)(1)(F) may not be circumvented by indefinitely deferring the scheduling of the hearing, no more may it be circumvented by ordering the hearing reopened more than 30 days after the matter has been taken under advisement. Alternatively it can be argued that the district judge’s action in ordering the hearing reopened was the grant of a continuance that created excludable time. It was indeed the grant of a continuance, but not every continuance creates excludable time. Only continuances based on “findings that the ends of justice ... outweigh the best interest of the public and the defendant in a speedy trial” create ex-cludable time. 18 U.S.C. § 3161(h)(8)(A). The district judge made no such findings when she ordered the hearing" }, { "docid": "2729308", "title": "", "text": "the day after August 19. See United States v. Mers, 701 F.2d 1321, 1332 n. 6 (11th Cir. 1983). After August 19, three sets of pretrial motions were filed which triggered exclusions of time from the 70-day period. See 18 U.S.C.A. § 3161(h). We address each set of motions in turn. 1. Campbell’s discovery and inspection motions. The government contends that Campbell stopped the Speedy Trial clock on September 11, 1980 — 21 nonexcludable days after August 19 — when he filed various discovery and inspection motions. Among the periods excluded in the 70-day Speedy Trial calculation is the “de lay 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.” § 3161(h)(1)(F). The magistrate ruled on Campbell’s motions on October 2, 21 days after they were filed, so the government argues that the Speedy Trial clock stopped until October 3. Campbell agrees that normally Section 3161(h)(1)(F) would exclude all 21 days during which the motions were pending, but suggests that no time may be excluded under Section 3161(h) during the initial 30 days following his first appearance with counsel. His argument finds no support in the language of the Act and is based on his misunderstanding of certain statements contained in the Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended (1979) (the Guidelines), published by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. Moreover, the same argument recently was squarely rejected in this Circuit in United States v. Mers, 701 F.2d at 1332-35. Even before Mers, we consistently upheld exclusions under Section 3161(h) occurring during this 30-day period. See, e.g., United States v. Struyf, 701 F.2d 875, 878 (11th Cir.1983); United States v. Stafford, 697 F.2d 1368, 1374 (11th Cir.1982); United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982). 2. The co-defendants’ “Northside Realty” motions. During the pendency of the discovery and inspection motions, Campbell’s four co-defendants' filed motions to dismiss based on alleged statutory and constitutional defects in" }, { "docid": "2729309", "title": "", "text": "that no time may be excluded under Section 3161(h) during the initial 30 days following his first appearance with counsel. His argument finds no support in the language of the Act and is based on his misunderstanding of certain statements contained in the Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended (1979) (the Guidelines), published by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. Moreover, the same argument recently was squarely rejected in this Circuit in United States v. Mers, 701 F.2d at 1332-35. Even before Mers, we consistently upheld exclusions under Section 3161(h) occurring during this 30-day period. See, e.g., United States v. Struyf, 701 F.2d 875, 878 (11th Cir.1983); United States v. Stafford, 697 F.2d 1368, 1374 (11th Cir.1982); United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982). 2. The co-defendants’ “Northside Realty” motions. During the pendency of the discovery and inspection motions, Campbell’s four co-defendants' filed motions to dismiss based on alleged statutory and constitutional defects in the selection and empanelment of grand juries in the Northern District of Georgia. Campbell did not file such a motion. On November 14, 1980, while the motions were still pending, the trial court certified as excludable time pursuant to Section 3161(h)(8)(B)(ii) the time from the filing of the motions to their disposition. The dismissal motions were consolidated with several other similar motions and, following evidentiary hearings, the district court on March 17, 1981, dismissed the indictments of all four of Campbell’s co-defendants. United States v. Northside Realty Associates, 510 F.Supp. 668 (N.D.Ga. 1981), rev’d sub nom. United States v. Bearden, 659 F.2d 590 (5th Cir.1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). After the dismissal orders were entered, the trial court adopted a magistrate’s recommendation to exclude, pursuant to Section 3161(h)(7), all time as to Campbell from September 17, 1980, when the first of Campbell’s co-defendants filed his motion to dismiss, through March 17, 1981. Section 3161(h)(7) provides for exclusion from the 70-day Speedy Trial period of “[a] reasonable period" }, { "docid": "23506622", "title": "", "text": "2836, 61 L.Ed.2d 283 (1979) was referred to the court and “carried with the trial.” On June 22, 1981, defense counsel filed a motion for a continuance which was accompanied by the defendants’ speedy trial waivers. The court denied the continuance and trial began on July 8,1981. Russo and DeLongchamps both were convicted and then appealed claiming a violation of the Speedy Trial Act (Act). 18 U.S.C. §§ 3161— 3174. Before a panel of this court, the government took the position that by carrying of the motion for a James hearing until the trial, it remained under advisement by the court and thereby tolled the time constraints of the statute so that trial had commenced well within the seventy-day, statutory time period. The DeLongch-amps court disagreed with this contention, however, pointing to the clear language of § 3161(h)(l)(J) which limits the maximum excludable time allowable for any matter taken under advisement by the court to thirty days. The court then found that the total excludable time in that case was thirty days. Because trial took place long after seventy includable days had passed, the court concluded that the delay clearly violated the Act and remanded the case to the district court to determine whether the dismissal should be with or without prejudice. See United States v. DeLongch-amps, 679 F.2d 217 (11th Cir.1982). On remand, the district court initially concluded without a hearing, that the indictment should be dismissed with prejudice. After the government filed a petition for reconsideration, the court conducted an evidentiary hearing at which time it reversed its original decision and granted a dismissal without prejudice. After the dismissal, the government reindicted and retried both defendants, again securing multiple convictions. On this second appeal, Russo claims that the district court erred in dismissing the indictment without prejudice. The language of the Act makes clear that both sanctions of dismissal with and without prejudice are available to remedy a violation of the Act. See 18 U.S.C. § 3162. The federal courts are split, however, as to whether there is a preference for either remedy. Compare United States v. Angelini," }, { "docid": "22892216", "title": "", "text": "the time between the filing of the motion and the holding of the hearing, or between the filing of the motion and the disposition of the motion if no hearing was held. The 1979 amendments changed E to F and added an unconditional requirement of prompt disposition after filing, S.Rep. No. 212, supra, at 33-34, 40-41, but there was no intention of thereby enlarging the 30-day period for consideration of any matter (including a motion) taken under advisement. The Senate Report states explicitly that the use of the words “prompt disposition” is not intended to permit circumvention of the 30-day requirement in J — an observation that would make no sense if F motions (that is pretrial motions) were not also subject to J. Id. at 34. A contrary conclusion would allow the judge to take more than 30 days to decide pretrial motions but not to decide any other type of motion or submission, however novel, difficult, and complex the issues it raised. This result would make no sense, and has been rejected. United States v. Raineri, 670 F.2d 702, 708 (7th Cir.1982); United States v. Bufalino, 683 F.2d 639, 642-44 (2d Cir.1982); United States v. Cobb, supra, 697 F.2d at 43; United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982). If 30 days is too little to dispose of a particular pretrial motion, the judge can grant a continuance either on his own motion or on that of counsel for either party. Thus, from the time the district judge took Janik’s motion under advisement after the filing of the last post-hearing briefs on August 6 she had 30 days to decide it unless she granted a continuance under section 3161(h)(8)(A), which she did not do. Hence the period of excludable time for deciding the motion ended September 5. We have treated the interval between November 12 and December 13 separately for two reasons. First, it can be argued that the period from November 12 (when the hearing was ordered reopened) to December 2 (when the reopened hearing was held) was excludable under section 3161(h)(1)(F) as a period" }, { "docid": "13607470", "title": "", "text": "the pretrial motions, which were apparently taken under advisement by the magistrate on January 5, 1981, remained in that status after January 23, 1981, insofar as they concerned Russo and Mick. Nevertheless, no more than 30 days of the period between January 5, 1981 and the clarification on July 1,1981, are excludable under the statute. The same rule must apply to the James motion. The defendants were indicted on December 2, 1980, and arraigned on December 9, 1980. Even accepting the contentions of the government, we find as few as 18 days, but no more than 30 days of excludable time under 18 U.S.C. § 3161(h). The seventy-day period prescribed by 18 U.S.C. § 3161(c)(1), as extended by § 3161(h), thus expired well before trial began on July 8, 1981. The appellants’ convictions are therefore reversed and remanded for dismissal of the indictments and a further determination of whether such dismissals should be with or without prejudice. 18 U.S.C. § 3162(a)(2); see id. § 3163(c). REVERSED and REMANDED. . Although Mick did not expressly join in the oral motion, his attorney spoke in support of it. Record, vol. 3, at 17, 24. The district court noted after trial, when the motion was renewed, “I take that motion as having been made for all Defendants under our ground rules .... ” The government concedes in its brief that this motion was raised on behalf of all defendants. Appellee’s Brief at 3, 7. . This conclusion does not condone the unnecessarily lax practice followed by the defendants here. Waivers of Speedy Trial Act protections should be specifically tailored to address only the time periods or reasons for delay actually being waived. The waivers here were based on an unmodified form, and cast in general, nonspecific terms. The government does not argue that the period during which the motion for a continuance was under advisement should further toll the time for trial. We express no opinion on this issue. Compare 18 U.S.C. § 3161(h)(l)(J) with id. § 3161(h)(8)(A). . That rule provides: Motions in criminal cases shall be accompanied by a written statement" }, { "docid": "130257", "title": "", "text": "excluded from the computations. Within that period the motions to reduce bond for Galardo and Otalora were also under consideration, filed on March 25 and 26 and decided on March 31. See 18 U.S.C.A. § 3161(h)(1)(F). Otalora filed a variety of pretrial motions on April 14,1983. Anything which “stops the clock” for one defendant does so for the same amount of time as to all co-defendants. United States v. Severdija, 723 F.2d at 793. The motions were decided on April 25, 1983 except for a deferral to the trial court of the James hearing, and the motions to compel disclosure of U.S.A. jury selection data, to prohibit prior jury service in similar case, to examine prospective jurors, for ordering Government’s proof or for separate hearing to determine existence of conspiracy, and motion in limine. 12 days are excluded for the pretrial motions decided on April 25. 18 U.S.C.A. § 3161(h)(1)(F). Galardo filed a motion on April 22, 1983 for the Government to produce Brady material. The court granted the motion on May 9, 1983. Although 18 days were involved here, only 14 may be excluded for this period because four overlap with the above exclusion. Thus, the district court correctly allowed a total of 43 days of excludable time for the defendants’ pretrial motions that were ruled on by the magistrate. 18 U.S.C.A. § 3161(h)(1)(F). The question, then, becomes whether the magistrate’s deferral of the certain pretrial motions to the trial court resulted in excludable time. On March 31,1983, the magistrate deferred Pirolli’s March 23 motion for a James hearing to the trial court. On April 25, 1983, in addition to a James motion, several other motions of Otalora were also deferred to .the trial court: motions to prohibit prior jury service in a similar case, to examine prospective jurors, for ordering Government’s proof or for separate hearing to determine existence of conspiracy and to compel disclosure of United States Attorney’s jury selection data. We need not decide whether any excludable time should be attributed to these motions under § 3161(h)(l)(J), pursuant to which the district court added 30 days" }, { "docid": "130259", "title": "", "text": "of excludable time. See United States v. Mers, 701 F.2d 1321, 1338-39 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983) (holding that where the magistrate conducted the suppression hearing on April 22 and issued his report and recommendations on May 18, the magistrate and the district court had 30 days each during which to take pretrial motions under advisement pursuant to § 3161(h)(l)(J)). • In United States v. Mastrangelo, 733 F.2d 793 (11th Cir.1984), a motion to suppress evidence because of an alleged illegal search was referred by the magistrate to the trial court. This Court held that the period from the filing of the motion until the conclusion of the suppression hearing was excludable time pursuant to § 3161(h)(1)(F). 733 F.2d at 796. A James motion and a Fourth Amendment suppression motion are procedurally alike. Both call for a hearing. Thus, the decision in Mastrangelo controls the issue here. We need not decide whether any of the time between March 23, 1983, the filing date of Pirolli’s motion, and July 25, 1983, the date of the hearing, would not be ex-cludable because the hearing was not “prompt” under the terms of § 3161(h)(1)(F) or would be curtailed by the 30-day provision in § 3161(h)(l)(J), Only 25 days of that time are necessary to be treated as additional excludable time to bring the trial within the 70-day Speedy Trial requirement. Cf. United States v. Cobb, 697 F.2d 38 (1st Cir.1982) (reversing and remanding to the district court to determine whether the § 3161(h)(1)(F) delay was reasonable). Nor do we need to consider the 14 days which otherwise would be excluded for á July 12 Galardo motion for release from custody. The trial was commenced within the explicit requirements of the Speedy Trial Act. Severance Defendants Otalora and Galardo argue the Government’s proof of deal involving only the confidential informer, co-defendant Pirolli and another individual named Massero, which occurred on February 28, 1983 was extraneous to them and prejudicial so that severance was required to insure due process. The granting of a motion to sever" }, { "docid": "22892245", "title": "", "text": "exclude thirty days of the time during which a court has a pretrial motion under advisement (the period after the briefs dealing with a pretrial motion have been submitted and the hearing, if any, has been held). See United States v. Bufalino, 683 F.2d 639, 644-45 (2d Cir.1982), cert. denied, _ U.S. _, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983); United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982); United States v. Scott, 557 F.Supp. 990, 994 (W.D.Va.1983). Until 1982, this court had never discussed the issue. Then, in United States v. Rained, 670 F.2d 702, 708 (7th Cir.1982), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1983), this court cited to sections 3161(h)(1)(F) & (J) in deciding that, where a magistrate had pretrial motions under advisement for seventy-nine days, it was reasonable to exclude only thirty of those days from the computation of the allowable seventy days between arraignment and trial. Furthermore, in addition to the thirty days excludable under section 3161(h)(l)(J), it is clear that the statute allows further exclusion for any time that is granted through a continuance, provided that “the judge grantfs] 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.” 18 U.S.C. § 3161(h)(8)(A). In the, present case, the trial court took the suppression motion under advisement on August 6,1982, the day on which the last post-hearing brief was filed. Based on Raineri and the other cases cited supra, I find that the following thirty days were excludable under section 3161(h)(l)(J). According to the trial judge, the motion continued under advisement from September 5, 1982, until November 12, 1982, when the judge ordered the hearing reopened so as to clarify the factual events at issue. Memorandum Order of January 18, 1983, at 6. Yet, there is no evidence in the record that during this period the trial court made a motion for a continuance sua sponte, or called a status hearing, or contacted the parties to let them" } ]

[ { "docid": "22047060", "title": "", "text": "of the California Education Code states that “English shall be the basic language of instruction in all schools.” That section permits a school district to determine “when and under what circumstances instruction may be given bilingually.” That section also states as “the policy of the state” to insure “the mastery of English by all pupils in the schools.” And bilingual instruction is authorized “to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.” Moreover, § 8573 of the Education Code provides that no pupil shall receive a diploma of graduation from grade 12 who has not met the standards of proficiency in “English,” as well as other prescribed subjects. Moreover, by § 12101 of the Education Code (Supp. 1973) children between the ages of six and 16 years are (with exceptions not material here) “subject to compulsory full-time education.” Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful. We do not reach the Equal Protection Clause argument which has been advanced but rely solely on § 601 of the Civil Rights Act of 1964, 42 U. S. C. § 2000d, to reverse the Court of Appeals. That section bans discrimination based “on the ground of race, color, or national origin,” in “any program or activity receiving Federal financial assistance.” The school district involved in this litigation receives large amounts of federal financial assistance. The Department of Health, Education, and Welfare (HEW), which has authority to promulgate regulations prohibiting discrimination in federally assisted school" } ]

[ { "docid": "13831147", "title": "", "text": "for the proposition that a precisely drawn statute, especially where later-enacted, preempts general remedies. They argue that allowing plaintiffs to secure relief under § 504 would subvert the carefully crafted internal administrative procedures and the express private right of action offered by the Handicapped Act. Several cases of the former Fifth Circuit since Brown have applied both of these remedies to redress a single legal injury. See S-l v. Turlington, 635 F.2d 342 (5th Cir.1981) (expulsion of handicapped students from school without considering whether their misconduct was related to their handicap violated both § 504 and the Handicapped Act); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980) (failure to provide catheterization services for handi capped children violated both § 504 and Handicapped Act); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated as moot, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (deaf graduate student entitled to sign language interpreter services under § 504 without previous resort to administrative remedies). Accord, Garrity v. Gallen, 522 F.Supp. 171 (D.D.C.N.H.1982) (both Handicapped Act and § 504 violated by blanket refusal to provide summer services to mentally retarded students); Pastel v. District of Columbia Board of Education, 530 F.Supp. 660 (DNH 1981) (Handicapped Act and § 504 create autonomous yet concurrent rights and remedies). The Brown Court was impressed by legislative history indicating exclusivity, as well as by the balance, completeness, and structural integrity of the statute there in issue. We do not find the factors relied upon by the Supreme Court in Brown applicable here. First, the Handicapped Act and § 504 may be available to different plaintiffs. The Handicapped Act is limited to children between the ages of 3 and 21, or depending upon local state practice, between the ages of 6 and 17. Section 504 contains no such limitations. Second, the protections of the Handicapped Act apply only to those programs funded under that statute. Nothing prevents a state from satisfying the educational needs of handicapped children through other available federal programs. Section 504 would apply to such programs, whereas the Handicapped Act by" }, { "docid": "18620624", "title": "", "text": "it could easily have done so. The United States Supreme Court has recognized that equal access may not always be enough to provide equal opportunity. In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 37 L.Ed.2d 1 (1974), a case brought under Title VI of the Civil Rights Act of 1964, the court upheld the right of Chinese children to have bilingual instruction. The court held that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.\" 414 U.S. at 566, 94 S.Ct. at 788. The court stated that it was “obvious that the Chinese-speaking minority received fewer benefits than the English-speaking majority from respondents’ school system ...” 414 U.S. at 568, 94 S.Ct. at 789. The court held that such receipt of different benefits constituted discrimination, and required that some relief be fashioned so that Chinese-speaking children could benefit from the school system. Although brought under a different statute, the same reasoning is applicable in this case. Just as some special treatment was necessary for the Chinese-speaking students in Lau to enjoy the benefits of their education, some special treatment may be necessary for handicapped children to benefit from theirs. If a child needed a special service to gain equal benefit from his education, the denial of that service would constitute discrimination in violation of Section 504. Individual attention to the needs of each handicapped child is the only way to determine whether such special or additional services are needed. Regulations promulgated pursuant to Section 504 support the above interpretation. 34 C.F.R. § 104.33 requires recipients of federal funds that operate public elementary or secondary school programs to “provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. § 105.33(a). Appropriate education is defined as regular or special education designed “to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are" }, { "docid": "22912389", "title": "", "text": "right to file a private action to enforce compliance with the statutes relied upon in the complaint and the recent regulations of the Urban Mass Transportation Administration. Section 504 provides: “No otherwise qualified handicapped individual in the United States, as defined in section 7(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (29 U.S.C. § 794). This provision closely tracks Section 601 of the Civil Rights Act of 1964, which was construed in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1. There a unanimous Supreme Court held that Section 601 provided a private cause of action. See also Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (5th Cir. 1969), certiorari denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350. While adverting to regulations and guidelines issued by the Department of Health, Education and Welfare (HEW) pursuant to Section 602 of the Act and the respondent school district’s contractual agreement to comply with Title VI of the Civil Rights Act of 1964 and the regulations thereunder, Justice Douglas (speaking for himself and Justices Brennan, Marshall, Powell and Rehnquist) stated, in reversing the court of appeals, that “[w]e do not reach the Equal Protection Clause argument which has been advanced but rely solely on § 601.” 414 U.S. at 566, 94 S.Ct. at 788. The concurring opinion of Justice Stewart (with whom the Chief Justice and Justice Blackmun joined) relied on Section 601 and the HEW regulations and guidelines and mentioned that plaintiffs there could concededly sue as third-party beneficiaries of said contract. Finally, Justice Blackmun (with whom the Chief Justice joined) stated that because the plaintiff class involved 2800 school children, he concurred in the holding that the San Francisco School District could not continue to teach students in English without teaching English to Chinese-speaking children or giving their classes in the Chinese language. Because of the near identity of language in Section 504 of the Rehabilitation Act of 1973" }, { "docid": "13312198", "title": "", "text": "is, of course, largely mooted by the court’s subsequent J.N.O.V. ruling. . For a discussion of the existente of a private right of action under § 504, see Helms v. McDaniel, 657 F.2d 800, 806 n. 10 (5th Cir.1981), cert. denied 455 U.S. 946, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1983); Camenisch v. University of Texas, 616 F.2d 127, 130-34 (5th Cir. 1980), vacated as moot on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). . 45 C.F.R. § 84.3(j)(2)(ii) defines “major life activities” as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” . See Gladys J. v. Pearland Independent School Dist., 520 F.Supp. 869 (S.D.Tex.1981) (organic childhood schizophrenia qualified as handicap); Halderman v. Pennhurst State School & Hosp., 446 F.Supp. 1295 (E.D.Pa.1978) (retarded individual handicapped within the coverage of the Act); Drennon v. Philadelphia General Hosp., 428 F.Supp. 809 (E.D.Pa.1977) (epileptic stated colorable cause of action under § 504); 43 Op. Att’y Gen. No. 12 (April 12, 1977) (Act covers drug/alcohol dependents). The “Catch-22” implicit in virtually all section 504 actions is particularly evident in this case, that is: Ms. Doe was required to prove her handicap for jurisdictional purposes, but simultaneously required to prove that she was not so handicapped as to be unqualified to perform her job. Of course, the initial jurisdictional burden is met by presentation of a “colorable claim.” For a discussion of the appropriate presentation of proof in section 504 cases, see Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1386-87 (10th Cir.1981) (adopting presentation similar to, though necessarily different from, that prescribed for disparate treatment cases under Title VII in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). . As discussed infra at page 1412, whether “reasonable men ... might reach different conclusions” as to the facts depends not only on the facts, but on the legal standard applicable to those facts. . We certainly do not suggest that absolute deference is required. No rubber-stamp approval is suggested hereby. A sound," }, { "docid": "6403372", "title": "", "text": "104.33 requires recipients of federal funds that operate public elementary or secondary programs to “provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. § 105.33a (1981). . For a summary of the administrative procedures established under the Education for All Handicapped Children’s Act of 1975, see Note, Enforcing the Right to an “Appropriate” Education: The Education for All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1103 (1979). . Discussions of the role of federal courts in the area of the education of handicapped children can be found in the following: Note, Enforcing the Right to an “Appropriate” Education: The Education for All Handicapped Children Act of 1975, supra; Haggerty & Sacks, Education of the Handicapped: Towards a Definition of an Appropriate Education, 50 Temp.L.Q. 961 (1977); Note, The Education of All Handicapped Children Act of 1975, 10 U.Mich.J.L. Ref. 110 (1976). . Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp.1981), which has been alleged by plaintiffs in their complaint as a basis for the relief being requested in the motion now before this Court, provides also a private cause of action for the enforcement of the right of a handicapped child to receive an appropriate education. S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Gladys J. v. Pearland Indep. School Dist., 520 F.Supp. 869, 874 (S.D.Tex.1981); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981); Boxall v. Sequoia Union High School Dist., 464 F.Supp. 1104 (N.D.Cal.1979); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978), Howard S. v. Friendswood Indep. School Dist, 454 F.Supp. 634 (S.D.Tex.1978). Although technically a cause of action under Section 504 of the Rehabilitation Act provides plaintiffs with a separate basis for relief, the discussion of the issues raised by plaintiffs’ motion will focus upon the provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1400 et seq. (1978 & Supp. 1982), (hereinafter Act)." }, { "docid": "18171319", "title": "", "text": "the breadth of these Section 504 compliance regulations. In Southeastern Community College, the Court intimated that the regulations may constitute improper standards for determining Section 504 violations if interpreted too broadly: “neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative action obligation on all recipients of federal funds. Accordingly, we hold that even if HEW has attempted to create such an obligation itself [through the compliance regulations], it lacks the authority to do so.” Id. at 411-12, 99 S.Ct. at 2369-70 (footnote omitted) (emphasis added). The Court unanimously concluded that the fundamental purpose of Section 504 is to prohibit discrimination against the handicapped rather than mandate affirmative relief for them. Id. at 410, 99 S.Ct. at 2369. Although the case was primarily concerned with post-secondary education rights of handicapped students, all of the statute’s compliance regulations must be interpreted with the Southeastern Community College caveat in mind. Several opinions subsequent to Southeastern Community College appear to construe Section 504’s pre-college education compliance regulations to mandate broad affirmative relief. See, e.g., Tatro v. Texas, 625 F.2d 557 at 564 (5th Cir. 1980); Gladys J. v. Pearland Independent School District, 520 F.Supp. 869, 874-75 (S.D.Tex.1981); Association For Retarded Citizens v. Frazier, 517 F.Supp. 105, 122 (D.Colo.1981); Association of Retarded Citizens v. McDaniel, 511 F.Supp. 1263, 1281 (N.D.Ga.1981). However, each of these cases simultaneously involved the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (Handicapped Act) and Section 504. The Handicapped Act provides financial assistance to states for the purpose of furnishing educational services to handicapped children. The receipt of this federal money is contingent upon the state’s performing certain affirmative duties with respect to the education of the handicapped. See generally Association For Retarded Citizens, 517 F.Supp. at 108-13 (discussion of Handicapped Act). The cited cases are dissimilar to the instant action because New Mexico has chosen not to participate in the Handicapped Act program. Accordingly, those opinions are of limited value to us inasmuch as their analyses of Section 504 are inextricably interwoven with their construction of the" }, { "docid": "807892", "title": "", "text": "No otherwise qualified handicapped individual in the United States, as defined in section 706(7) shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . . This statutory language is virtually identical to discriminatory prohibitions found in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., see Brown v. Sibley, 650 F.2d 760, 767 (5th Cir. 1981), and at least one court has considered the section to be part of the general corpus of federal discrimination law. New York State A.R.C. and Pari si v. Carey, 612 F.2d 644, 649 (2nd Cir. 1979). To determine the requisites of the “free appropriate public education” to which handicapped children are entitled under the EHCA and section 504, the Court must first look to the EHCA and its legislative history for guidance. Generally, it is evident that an appropriate education is one which provides each handicapped child educational opportunities commensurate with that provided other children in the public schools. Battle v. Commonwealth, supra, at 279; Rowley v. Board of Education, supra, at 534. Specifically, a free appropriate public education is one which (1) meets reasonable state educational standards, and (2) provides specially designed instruction and related services to meet the unique needs of handicapped children. 20 U.S.C. § 1401(16)-(19). Several courts have recognized as a result of the Act’s focus on the unique needs of handicapped children that the definition of a free appropriate public education must take into account the underlying educational goals established for handicapped children, since needs are necessarily determined in reference to goals. See, e. g., Battle v. Commonwealth, supra, at 276. The EHCA does not mandate specific educational goals for the handicapped, contemplating that in the first instance states shall have the responsibility to set individual educational goals and reasonable means to attain those goals. Id. The Act does contemplate, where possible, however, that educational" }, { "docid": "18171321", "title": "", "text": "broader Handicapped Act. By contrast, we are concerned in this case only with the antidiscrimination requirements of Section 504. Nevertheless, Southeastern Community College is not fatal to the Association’s Section 504 claim. The Court plainly suggests that the distinctions between affirmative action unnecessary under Section 504 and discrimination made unlawful by the section are sometimes unclear. Id. 442 U.S. at 412, 99 S.Ct. at 2370. Moreover, Southeastern Community College concedes that “situations may arise where a refusal to modify an existing program might become discriminatory” under section 504. Id. at 412-13, 99 S.Ct. at 2370 (emphasis added). Close scrutiny of Southeastern Community College and other authorities reveals that a federally-funded education system may be found in violation of Section 504 where the entity’s practices preclude the handicapped from obtaining system benefits realized by the non-handicapped. Two cases arising under Title VI of the Civil Rights Act of 1964 are illustrative. See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 1974). These cases are properly analogous to the instant action inasmuch as they involve the education rights of “language handicapped” children, and because Section 504 is “patterned after, and is almost identical to, the antidiscrimination language of .. . the Civil Rights Act of 1964 [Title VI].” Senate Report, supra. In Lau, the Supreme Court held that non-English speaking students were discriminated against by school districts which failed to provide education services that accommodated their language deficiency. Id. 414 U.S. at 568, 94 S.Ct. at 789. In Serna, this circuit similarly viewed the failure to devise education programs which appropriately provided for the language disadvantaged as unlawful discrimination under Title VI. See 499 F.2d at 1153. Both eases indicate that proscribed discrimination occurs when non-English speaking students derive fewer system benefits than their English speaking classmates, even where the education programs serving the students are administered “evenhandedly. ” See Lau, 414 U.S. at 568, 94 S.Ct. at 789; Serna 499 F.2d at 1153-54. Southeastern Community College suggests that refusal to affirmatively modify an education program is" }, { "docid": "807891", "title": "", "text": "supra; Rowley v. Board of Education, 483 F.Supp. 536 (S.D.N.Y.1980); Stuart v. Nappi, 443 F.Supp. 1235 (D.Conn.1978). Finally, the Act guarantees parents or guardians of handicapped children the right to secure the provision of a free appropriate public education to their child, creating both administrative and judicial remedies to this end. 20 U.S.C. § 1415. Generally, courts have construed section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as also providing a private action for enforcement of the right of handicapped children to a free appropriate public education. E. g., S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on other grounds, 616 F.2d 205 (5th Cir. 1980); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634 (S.D.Tex.1978). See also 34 C.R.F. § 104.33 (1979). Section 504 provides: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . . This statutory language is virtually identical to discriminatory prohibitions found in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., see Brown v. Sibley, 650 F.2d 760, 767 (5th Cir. 1981), and at least one court has considered the section to be part of the general corpus of federal discrimination law. New York State A.R.C. and Pari si v. Carey, 612 F.2d 644, 649 (2nd Cir. 1979). To determine the requisites of the “free appropriate public education” to which handicapped children are entitled under the EHCA and section 504, the Court must first look to the EHCA and its legislative history for guidance. Generally, it is" }, { "docid": "18620623", "title": "", "text": "regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulations shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take affect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees. It is clear that Section 504 prohibits a handicapped individual from being denied the benefits of an educational program which receives federal financial assistance. This language shows that the congressional intent was not merely to prohibit the denial of access to such programs, but also to give handicapped persons an opportunity to enjoy the benefits of, and have access to, such programs. It indicates that special treatment or additional services may be necessary for the handicapped person to fully enjoy the benefits of his education. Mere access to conventional education may not be sufficient. If Congress had intended only to prohibit the denial of access to federally funded educational programs, it could easily have done so. The United States Supreme Court has recognized that equal access may not always be enough to provide equal opportunity. In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 37 L.Ed.2d 1 (1974), a case brought under Title VI of the Civil Rights Act of 1964, the court upheld the right of Chinese children to have bilingual instruction. The court held that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.\" 414 U.S. at 566, 94 S.Ct. at 788. The court stated that it was “obvious that the Chinese-speaking minority received fewer benefits than the English-speaking majority from respondents’ school system ...” 414 U.S. at 568, 94 S.Ct. at 789. The court held that such receipt of different benefits constituted discrimination, and required that some relief be fashioned so that Chinese-speaking children could benefit from the school system. Although brought under a different statute, the same" }, { "docid": "18171322", "title": "", "text": "These cases are properly analogous to the instant action inasmuch as they involve the education rights of “language handicapped” children, and because Section 504 is “patterned after, and is almost identical to, the antidiscrimination language of .. . the Civil Rights Act of 1964 [Title VI].” Senate Report, supra. In Lau, the Supreme Court held that non-English speaking students were discriminated against by school districts which failed to provide education services that accommodated their language deficiency. Id. 414 U.S. at 568, 94 S.Ct. at 789. In Serna, this circuit similarly viewed the failure to devise education programs which appropriately provided for the language disadvantaged as unlawful discrimination under Title VI. See 499 F.2d at 1153. Both eases indicate that proscribed discrimination occurs when non-English speaking students derive fewer system benefits than their English speaking classmates, even where the education programs serving the students are administered “evenhandedly. ” See Lau, 414 U.S. at 568, 94 S.Ct. at 789; Serna 499 F.2d at 1153-54. Southeastern Community College suggests that refusal to affirmatively modify an education program is not discrimination under Section 504 if the handicapped recipient thereafter would remain unable to ob tain the program’s ultímate benefits. 442 U.S. at 409-10, 99 S.Ct. at 2368-69. Conversely, it is reasonable to conclude that refusal to accommodate a handicapped student in an educational program may constitute discrimination if the student could thereby realize and enjoy the program’s benefits. See Tatro, 625 F.2d at 564 & n.19. However, although Section 504 regulations may sometimes impose a duty to modify federally-funded programs to provide for the handicapped, this duty is not unlimited. Such accommodation is required only when it does not generate undue financial or administrative hardship. See Southeastern Community College, 442 U.S. at 412, 99 S.Ct. at 2370; Majors v. Housing Authority, 652 F.2d 454, 457 (5th Cir. 1981); Tatro, 625 F.2d at 564 n.19. In this regard, it seems apparent under Lau and Southeastern Community College that the greater the number of children needing the particular special education service, the more likely that failure to provide the service constitutes discrimination. This is so because" }, { "docid": "954808", "title": "", "text": "that right. In 29 U.S.C. § 793, Congress provided for enforcement of the Rehabilitation Act of 1973 against employers receiving money under federal contracts by directing that aggrieved individuals should file a complaint with the Secretary of Labor, who would take appropriate action. However, 29 U.S.C. § 794 provides no specific enforcement mechanism for individuals such as plaintiff Kimber Sherer, who are given rights under the Act to be free from discrimination while attending educational institutions which receive federal funds. Defendants therefore contend that plaintiff has no private cause of action arising under the Rehabilitation Act of 1973. Plaintiffs, on the other hand, point to the clear language of the statute in claiming a right not to be excluded from benefits granted other students of the North Kansas City School District. Plaintiffs rely upon the growing body of case law indicating that handicapped persons have a right against arbitrary classification, as expressed in § 504 of the Rehabilitation Act: “no otherwise qualified handicapped individual” shall be denied the right to participate in programs which are federally funded. See Lloyd v. Regional Transp. Authority, 548 F.2d 1277 (7th Cir. 1977); Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va.1976); Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D.Pa.1976); Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Barnes v. Converse College, No. 77-1116, 436 F.Supp. 635 (D.S.C.1977); see also Bartels v. Biernat, 405 F.Supp. 1012 (E.D.Wis.1975); Crawford v. Univ. of North Carolina, No. C-77-173-D, 440 F.Supp. 1047 (M.D.N.C.1977). It is true that some courts have found an implied right of action in § 504 of the Rehabilitation Act of 1973. Hairston v. Drosick, supra; Sites v. McKenzie, supra. The genesis of the private-right-of-action theory lies in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class action brought under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, involving 1,800 San Francisco school children of Chinese ancestry who claimed that they were being denied the right to a meaningful education because they were unable to speak" }, { "docid": "6403373", "title": "", "text": "which has been alleged by plaintiffs in their complaint as a basis for the relief being requested in the motion now before this Court, provides also a private cause of action for the enforcement of the right of a handicapped child to receive an appropriate education. S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Gladys J. v. Pearland Indep. School Dist., 520 F.Supp. 869, 874 (S.D.Tex.1981); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981); Boxall v. Sequoia Union High School Dist., 464 F.Supp. 1104 (N.D.Cal.1979); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978), Howard S. v. Friendswood Indep. School Dist, 454 F.Supp. 634 (S.D.Tex.1978). Although technically a cause of action under Section 504 of the Rehabilitation Act provides plaintiffs with a separate basis for relief, the discussion of the issues raised by plaintiffs’ motion will focus upon the provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1400 et seq. (1978 & Supp. 1982), (hereinafter Act). See Gladys J. v. Pearland Indep. School Dist., supra, at 874; Howard S. v. Friendswood Indep. School Dist., supra, at 637. As indicated by the regulations accompanying section 504, a school system will provide the “free and appropriate education” and procedural safeguards required under section 504 by complying with the Act. See 34 C.F.R. §§ 104.33(b), 104.36 (1981). . 45 C.F.R. § 121a.533(a)(3) has been redesignated as 34 C.F.R. § 300.533(a)(3) (1981). . Section 89.214(b) provides in pertinent part: A student receives special education services only after a comprehensive multidisciplinary team, including the parent when possible, has reviewed the data from all three stages of the comprehensive assessment; has determined that the student has a physical/mental/emotional disability establishing eligibility to receive special education services; has determined whether or not the student has an educational need significant enough to merit special education instruction; has provided an individual educational plan, complete with statements or short-term objectives, long-range goals, instructional and related services to be delivered; and has provided for an educational placement in the least restrictive educational" }, { "docid": "14279368", "title": "", "text": "1801, 23 L.Ed.2d 371 (1969); Rogers v. Frito-Lay, Inc., supra, at 1101 (Goldberg, J., dissenting). Legislative statements thus indicate that Congress envisioned the availability of a private action for equitable relief under Title V of the Rehabilitation Act analogous to that provided private litigants under Title VII of the Civil Rights Act of 1964. The commentary, albeit of limited weight, does not evidence congressional intent to imply a judicial remedy under section 504 encompassing a panoply of traditional common law remedies; indeed, such a result appears contra-indicated. The Court gleans more significant support for the conclusion that Congress did not intend to create a general damage remedy for the enforcement of section 504 from the overall legislative scheme of the statute. See TAMA, supra, 444 U.S. at 22, 100 S.Ct. at 248. Congress expressly modeled the discrimination prohibition contained in section 504 after the prohibitory language contained in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. See S.Rep.No.93-1297, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Ad.News 6374, 6390-91. See also Brown v. Sibley, 650 F.2d 760, 767-68 (5th Cir. 1981). As with Title VI and Title IX, an elaborate administrative structure for governmental enforcement of section 504 exists. Camenisch v. University of Texas, supra, at 132; Boxall v. Sequoia Union High School District, supra, at 1112. Clearly, the administrative enforcement scheme is of limited utility to individual complainants. The ultimate remedy afforded by the administrative enforcement process is a complete cut-off of federal funds to a non-complying recipient. While the threat of funding termination might provide an effective incentive to compliance with section 504, actual termination of funds would virtually guarantee that no further services accrue to the aggrieved individual. Camenisch v. University of Texas, supra, at 135. A private right of action for injunctive and declaratory relief under section 504, however, provides an effective means of private enforcement while ensuring that the program or services in question remain within the statutory framework." }, { "docid": "23374484", "title": "", "text": "otherwise qualified handicapped individuals. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985). “[T]o assure meaningful access, reasonable accommodations in the ... program or benefit [receiving federal financial assistance] may have to be made.” Id. The applicability of section 504 to the provision of qualified sign language inter preters for deaf inmates in state correctional programs which receive federal financial assistance has not been tested specifically in the courts. However, under section 504, both the Seventh and Fifth Circuits have ordered the provision of sign language interpreters for deaf students who were otherwise qualified participants in programs receiving federal financial assistance. Jones v. Illinois Department of Rehabilitation Services, 689 F.2d 724 (7th Cir.1982) (Illinois Department of Rehabilitative Services had responsibility under section 504 for providing interpreter services to deaf college student at state university); University of Camenisch v. Texas, 616 F.2d 127 (5th Cir.1980) (district court properly granted preliminary injunctive relief ordering state university to procure and compensate a qualified interpreter to assist plaintiff, a deaf graduate student, in classes during school term), vacated and remanded on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); see also Barnes v. Converse College, 436 F.Supp. 635 (D.S.C.1977) (in motion for preliminary injunction, plaintiff who was otherwise qualified deaf college student, had probable right under section 504 to financial assistance for auxiliary aids such as interpreter); Crawford v. University of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977) (in motion for preliminary injunction, deaf graduate student had probable right under section 504 to auxiliary aids such as interpreter provided by the university). Furthermore, the United States Department of Justice has promulgated regulations under section 504 which apply to correctional facilities receiving federal financial assistance. The regulations require those facilities to “... provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual, or speaking skills where refusal to make such provision would discriminatorily impair or exclude the participation of such persons .... Such auxiliary aids may include brailled and taped materials, qualified interpreters, readers and telephonic devices.” 28 C.F.R. § 42.503(f) (emphasis added). The" }, { "docid": "954809", "title": "", "text": "federally funded. See Lloyd v. Regional Transp. Authority, 548 F.2d 1277 (7th Cir. 1977); Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va.1976); Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D.Pa.1976); Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Barnes v. Converse College, No. 77-1116, 436 F.Supp. 635 (D.S.C.1977); see also Bartels v. Biernat, 405 F.Supp. 1012 (E.D.Wis.1975); Crawford v. Univ. of North Carolina, No. C-77-173-D, 440 F.Supp. 1047 (M.D.N.C.1977). It is true that some courts have found an implied right of action in § 504 of the Rehabilitation Act of 1973. Hairston v. Drosick, supra; Sites v. McKenzie, supra. The genesis of the private-right-of-action theory lies in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class action brought under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, involving 1,800 San Francisco school children of Chinese ancestry who claimed that they were being denied the right to a meaningful education because they were unable to speak English. In reversing a decision by the Fifth Circuit Court of Appeals that the failure of the school system to provide English language instruction did not violate Title VI, which bans discrimination based “on the ground of race, color, or national origin,” in “any program or activity receiving Federal financial assistance,” the United States Supreme Court found that the school district had contractually agreed to comply with Title VI and all requirements imposed by or pursuant to the regulations of HEW promulgated under the statute, Justice Stewart’s concurring opinion noted that defendants had not questioned plaintiffs’ standing to bring the action as third-party beneficiaries of the contract. Justice Blackmun’s concurrence emphasized that the result might be different in a case concerned “with a very few youngsters, or with just a single child . . . .” Relying upon the Lau decision, the Court of Appeals for the Seventh Circuit held in Lloyd v. Regional Transp. Authority, 548 F.2d 1277 (7th Cir. 1977), that § 504 of the Rehabilitation Act, and the regulations pursuant thereto, grant" }, { "docid": "18171320", "title": "", "text": "See, e.g., Tatro v. Texas, 625 F.2d 557 at 564 (5th Cir. 1980); Gladys J. v. Pearland Independent School District, 520 F.Supp. 869, 874-75 (S.D.Tex.1981); Association For Retarded Citizens v. Frazier, 517 F.Supp. 105, 122 (D.Colo.1981); Association of Retarded Citizens v. McDaniel, 511 F.Supp. 1263, 1281 (N.D.Ga.1981). However, each of these cases simultaneously involved the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (Handicapped Act) and Section 504. The Handicapped Act provides financial assistance to states for the purpose of furnishing educational services to handicapped children. The receipt of this federal money is contingent upon the state’s performing certain affirmative duties with respect to the education of the handicapped. See generally Association For Retarded Citizens, 517 F.Supp. at 108-13 (discussion of Handicapped Act). The cited cases are dissimilar to the instant action because New Mexico has chosen not to participate in the Handicapped Act program. Accordingly, those opinions are of limited value to us inasmuch as their analyses of Section 504 are inextricably interwoven with their construction of the broader Handicapped Act. By contrast, we are concerned in this case only with the antidiscrimination requirements of Section 504. Nevertheless, Southeastern Community College is not fatal to the Association’s Section 504 claim. The Court plainly suggests that the distinctions between affirmative action unnecessary under Section 504 and discrimination made unlawful by the section are sometimes unclear. Id. 442 U.S. at 412, 99 S.Ct. at 2370. Moreover, Southeastern Community College concedes that “situations may arise where a refusal to modify an existing program might become discriminatory” under section 504. Id. at 412-13, 99 S.Ct. at 2370 (emphasis added). Close scrutiny of Southeastern Community College and other authorities reveals that a federally-funded education system may be found in violation of Section 504 where the entity’s practices preclude the handicapped from obtaining system benefits realized by the non-handicapped. Two cases arising under Title VI of the Civil Rights Act of 1964 are illustrative. See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 1974)." }, { "docid": "954812", "title": "", "text": "can be no objection to an independent cause of action in federal courts. The Court expressly left open as premature the question whether, after consolidated procedural enforcement regulations were issued by HEW pursuant to § 504, the judicial remedy available must be limited to post-administrative remedy judicial review, and stated that “until effective enforcement regulations are promulgated, Section 504 in its present incarnation as an independent cause of action should not be subjugated to the doctrine of exhaustion.” Id. at 1286, n. 29. In a case involving Title IX of the Education Amendments of 1972, 20 U.S.C. § 1682, the Seventh Circuit previously had determined that no private cause of action is expressly or impliedly provided until Title IX and that judicial review of agency action taken under the scheme of administrative enforcement through the Department of HEW, is the only court procedure specified. Cannon v. Univ. of Chicago, 559 F.2d 1063, 12 E.P.D. 5382 (7th Cir. 1976). The Court in Cannon interpreted Lau and the cases finding a right of action under Title VI as applying only where a large number of plaintiffs sought to enforce a national constitutional right, and not providing a private right for each individual plaintiff, and concluded that construing Title IX to provide a private cause of action before the administrative remedy expressly provided for therein has been exhausted would be to violate the intent of Congress. In the present action, defendants rely upon the reasoning of Cannon and the fact that, unlike the circumstances in Lloyd, HEW now has promulgated final regulations implementing § 504, to support their position that § 504 does not provide a private right of action in this case. This Court finds persuasive the reasoning contained in the United States Magistrate’s report and recommendation in the most recent consideration of this question known to this Court. In Crawford v. University of North Carolina, No. C-77-173-D, 440 F.Supp. 1047 (M.D.N.C.), where a deaf graduate student sought an Order requiring the university to provide him an interpreter, the United States Magistrate recognized the plaintiff’s probable right to assert a private claim" }, { "docid": "16940128", "title": "", "text": "(daily ed. March 1, 1973) (remarks of Sen. Humphrey, indicating that Section 504 represented substitute for amendments to Title VI to protect the handicapped). In 1978, Congress reemphasized the identity of the prohibitions in the Rehabilitation, Comprehensive Services and Development Disabilities Amendments, Pub.L. No. 95-602. Section 120 of the Amendments, § 505(a)(2) of the Rehabilitation Act, 29 U.S.C. § 794a(a)(2) (Supp.1983) points directly to Title VI as a model for Section 504: The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section [504] of this [Act]. See also, S.Rep. No. 95-890, 95th Cong., 2d Sess., reprinted at [1978] U.S.Code Cong. & Ad.News 7312; Community Television of Southern California v. Gottfried, 459 U.S. 498, 103 S.Ct. 885, 892, 74 L.Ed.2d 705 (1983); Gottfried v. FCC, 655 F.2d 297, 312 (D.C.Cir.), cert. denied, 454 U.S. 1144, 102 S.Ct. 998, 71. L.Ed.2d 292 (1981). Accordingly, when determining whether Medicaid and Medicare payments are federal financial assistance to a program or activity under Section 504, the legislative history and judicial interpretation of Title VI and Title IX of the Civil Rights Act provide appropriate and necessary guidance, Brown v. Sibley, 650 F.2d 760, 767-69 (5th Cir.1981), particularly where, as here, we establish new rules of law that will have a significant impact on major policy issues. B. Passed as part of the Civil Rights Act of 1964, Title VI had a single overriding purpose: “to make sure that the funds of the United States are not used to support racial discrimination.” 110 Cong.Rec. 6544 (comments of Sen. Humphrey). The statute implements this purpose by preventing service providers receiving federal funds from discriminating in programs in which individual beneficiaries of the federal aid participate. Title VI binds the service provider, or “recipient,” thus it affords a remedy against discrimination by recipients to all participants in a federally funded program, not merely to the individual beneficiaries of the federal aid —" }, { "docid": "971011", "title": "", "text": "under any program or activity receiving Federal financial assistance. Under authority of Section 602 of the Act, HEW authorized regulation 45 C.F.R. § 80(b)(1), which provides that recipients may not: (ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; (iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program . In addition, HEW clarifying guidelines state: Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students. 35 Fed.Reg. 11,595 (1970). In Lau v. Nichols, supra, the Supreme Court, interpreting these regulations, emphasized that the failure of the San Francisco Unified School District to teach remedial English excluded Chinese-speaking students from any meaningful education. The Court stated: “[Tjhere is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.” 414 U.S. at 566, 94 S.Ct. at 788 (emphasis added). Under the Court’s analysis of the Title VI requirements, non-English-speaking students received fewer benefits from the school system than did their English-speaking counterparts. 414 U.S. at 568, 94 S.Ct. at 789. Appellants argue that the failure to implement a bilingual-bicultural education program staffed with bilingual instructors forecloses them from meaningful education and that they receive fewer benefits from the district’s educational programs than do English-speaking children. We do not agree. Providing the appellants with remedial instruction in English which appellants appear to admit complies with Lau’s mandate makes available the meaningful education and the equality of educational opportunity that Section 601 requires. There is no suggestion that appellees’ remedial program operates “as an educational deadend or permanent track.” 414 U.S. at 568, 94 S.Ct. at" } ]

[ { "docid": "14321207", "title": "", "text": "96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). “Information useful to impeach prosecution witnesses falls within this rubric.” Devin, 918 F.2d at 289. Here, information about Caruso’s substantial drug dealings could have served to erode Caruso’s credibility significantly and thereby dimmish the weight a jury would give to his testimony. See Ingraldi, 793 F.2d at 411 (citing Bagley, 473 U.S. at 676). The late disclosure by the government in this case clearly involved material evidence. Consequently, we turn to the second step of the inquiry and consider whether Osorio has shown that he was prejudiced by the delayed disclosure of Caruso’s extensive drug dealings in his ability to prepare and present his case. In other words, we evaluate how well defense counsel was able to use the information despite the delay in its disclosure. Ingraldi, 793 F.2d at 411-12. -A- The Responsibility of Defense Counsel In considering the prejudice to a defendant’s case from delayed disclosure of evidence, we have held it “incumbent upon a party faced with such a situation to ask explicitly that the court grant the time needed to regroup, or waive the point.... [A defendant’s] claim that he was unfairly surprised is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency.” United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.) (citing Szeliga v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984) (“the remedy for coping with surprise is not to seek reversal after an unfavorable verdict, but a request for continuance at the time the surprise occurs”)), cert. denied, — U.S. —, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously. Ingraldi, 793 F.2d at 413; see also Diaz-Villafane, 874 F.2d at 47 (“[i]f, indeed, this was a sneak attack, then a continuance would have been a complete cure”). In response to the delayed disclosure of this impeachment evidence, defense counsel made no objection," } ]

[ { "docid": "15006853", "title": "", "text": "of relief from prejudice occasioned by discovery violations are curative measures such as continuances and stays pending compliance, orders tailored to effect issue preclusion, contempt orders, and default judgments. See R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15-20 (1st Cir.1991) (discussing grounds for Rule 37 sanctions); Fed.R.Civ.P. 37(b)(2), (c). Appellants’ claim fails, nonetheless, as they opted to proceed rather than request relief under Rule 37, presumably because the information Baker did not disclose had become known to appellants before or during trial. Moreover, though their gambit proved unsuccessful, there was both method'—potential advantage—in their stratagem and little to lose. Since there is even now no concrete suggestion that further discovery would have benefited them, their prospects for obtaining Rule 37 relief appear all along to have been minimal compared with the potential jury impact their “cover-up” claim might reasonably have been expected to occasion. Thus, appellants’ decision to use their hole card in an abortive gambit with the jury plainly waived any claim that their decision to forego Rule 37 relief rendered the trial unfair. The appropriate remedy for parties who uncover discovery violations is “not to seek reversal after an unfavorable verdict but a request for continuance at the time the surprise occurs.” Szeliga v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984); see United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.) (criminal case), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Here, of course, there appears to have been no genuine surprise. Nor can appellants plausibly suggest that the district court abused its discretion by declining their postjudgment motion for relief from the unwelcome consequences of their calculated decision. Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 29 (1st Cir.1988) (“[A] party may not prevail on a Rule 60(b)(3) motion ... where [it] has access to disputed information or has knowledge of inaccuracies in an opponent’s representations at the time of the alleged misconduct.”) (collecting cases). Ill CONCLUSION As the district court did not abuse its discretion in precluding the dissimilar BRT-design evidence nor in denying postjudgment relief under Rules" }, { "docid": "22352233", "title": "", "text": "On other occasions, the government refused to produce documents that defense counsel believed were discoverable ei ther as exculpatory material, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), or as fodder for impeachment, see Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); see also 18 U.S.C. § 3500 (1988) (requiring the government to disclose, after direct testimony and on the defendant’s motion, any statement by the witness, in the government’s possession, that relates to the subject matter of the witness’s testimony). We discuss these two species of discovery problems separately. A. Delayed Discovery. Prosecutors have an obligation to furnish exculpatory and impeachment information to the defense in a timely fashion. Although the government’s obligation goes beyond the good-faith requirement of civil discovery, see United States v. Samalot Perez, 767 F.2d 1, 4 (1st Cir.1985), its bounds are not limitless. Patrolling these boundaries is primarily the duty of the nisi prius court. Because the district judge is better attuned to the nuances of the trial, this court must take a deferential view of rulings made in the course of that patrol. When discovery material makes a belated appearance, a criminal defendant must ordinarily seek a continuance if he intends to claim prejudice. A continuance affords time to study the newly emergent information, consider its possible ramifications, change trial strategy (if necessary), assess any potential prejudice, and determine how best to use the information. As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery. See, e.g., United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991); see also United States v. Diaz-Villa-fane, 874 F.2d 43, 47 (1st Cir.) (concluding, in an analogous context, that a defendant’s cry of unfair surprise “is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency”), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Thus," }, { "docid": "17816489", "title": "", "text": "Smith renewed his motion for a mistrial; in the event that his mistrial motion was denied, he also moved for a three-day continuance until Juné 16, to afford him “an adequate opportunity to fully review the records and adequately cross-examine her on them.” The district court denied Smith’s motion for a mistrial but granted his request for a three-day continuance of Moore’s cross-examination. Accordingly, Smith cross-examined Moore on June 16, 1997. He did not complain that the continuance that he had requested and received was insufficient, nor did he renew his motion for a mistrial before cross-examining Moore. B. Analysis In delayed disclosure cases, we need not address whether the evidence was “material” under Brady unless the defendant can demonstrate that “defense counsel was ‘prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant’s case.’ ” United States v. Lemmerer, 277 F.3d 579, 588 (1st Cir.2002) (quoting Ingraldi, 793 F.2d at 411-12); see also Devin, 918 F.2d at 290 (“[T]he critical inquiry is ... whether the tardiness prevented defense counsel from employing the [tardily disclosed] material to good effect.”). However, we have noted that defense counsel must typically request a continuance to preserve a claim of prejudice by delayed disclosure of evidence. See United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir.1993) (“As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery.”). See also United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991) (“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.”). Here, Smith failed on June 16, 1997, to request an additional continuance or to renew his motion for a mistrial. When Smith’s counsel appeared in court on June 16, he never indicated that the three-day continuance was insufficient time to prepare adequately for Moore’s cross-examination. Compare Devin, 918 F.2d at 289 (noting that defense counsel, unsatisfied with four-day continuance granted" }, { "docid": "17816490", "title": "", "text": "counsel from employing the [tardily disclosed] material to good effect.”). However, we have noted that defense counsel must typically request a continuance to preserve a claim of prejudice by delayed disclosure of evidence. See United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir.1993) (“As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery.”). See also United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991) (“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.”). Here, Smith failed on June 16, 1997, to request an additional continuance or to renew his motion for a mistrial. When Smith’s counsel appeared in court on June 16, he never indicated that the three-day continuance was insufficient time to prepare adequately for Moore’s cross-examination. Compare Devin, 918 F.2d at 289 (noting that defense counsel, unsatisfied with four-day continuance granted to review tardy disclosures, moved for further continuance of 30 days). In any event, even if there was a delayed disclosure and Smith properly preserved a challenge to it, he cannot make the requisite showing of prejudice. We have held that “some showing of prejudice [is] required beyond mere assertions that the defendant would have conducted cross-examination differently.” United States v. Walsh, 75 F.3d 1, 8 (1st Cir.1996). At the very least, Smith must show “a plausible strategic option which the delay foreclosed.” Devin, 918 F.2d at 290. The impact of the delayed disclosure on defense counsel’s cross examination turns in part on “the extent the defendant actually managed to use the [disclosed material] despite the delay.” Ingraldi, 793 F.2d at 412. The record demonstrates that defense counsel conducted an effective cross-examination of Moore by using her medical records and criminal history to attack her credibility. He interrogated her about her mental health history, along with her prior criminal record and history of drug abuse. He specifically pressed her about her involuntary commitment at two" }, { "docid": "23564666", "title": "", "text": "that an evidentiary hearing should have been convened but was not, where, as here, the protester did not seasonably request such a hearing in the lower court.”). Tardiff’s case is engulfed within this generality. Tardiff’s claim that the court should have continued the sentencing hearing to afford him more of an opportunity to rebut the prosecution’s evidence is equally specious. In the first place, Tardiff asked for, and received, a continuance of over five weeks. He did not request a further continuance. In the second place, the evidence presented at the sentencing hearing came as no surprise: Tardiff and his counsel had reviewed it well in advance. There was enough time to prepare a rebuttal. Lastly, even if a defendant is faced at sentencing with information that he has not had a chance to rebut — a situation that does not exist in this case — we think it incumbent upon the defendant to ask for a continuance then and there. After all, district judges are not mind readers. When, as here, the defense is confronted with the government’s proffer at a sentencing hearing and does not move for a continuance, a later claim of surprise will not be countenanced. See, e.g., United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). To sum up, Tardiff waived the right to complain about the lack of either an eviden-tiary hearing or a continuance. At any rate, he had ample opportunity to rebut the evidence massed against him at sentencing. No more was legally required. See ' U.S.S.G. § 6A1.3 (providing that, when a factor important to sentencing is in dispute, the parties “shall be given an adequate opportunity to present information to the court regarding that factor”). 2. Right to Confrontation. Next, Tardiff argues that the district court, which did not take testimony but based its assessment of the loss on the PSI Report, victim impact statements, and the like, violated the Confrontation Clause of the federal Constitution. The short answer to this plea is that Tardiff, although citing" }, { "docid": "22320868", "title": "", "text": "unfairly surprised is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency. See, e.g., United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986) (defendant’s failure to move for continuance despite delayed disclosure of files indicates lack of prejudice). If, indeed, this was a sneak attack, then a continuance would have been a complete cure. It is, we think, incumbent upon a party faced with such a situation to ask explicitly that the court grant the time needed to regroup, or waive the point. See Szeliga v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984) (“remedy for coping with surprise is not to seek reversal after an unfavorable verdict, but a request for continuance at the time the surprise occurs”); United States v. Long, 674 F.2d 848, 855 (11th Cir.1982) (similar). Appellant apparently did not need more time; the transcript shows that the witnesses were cross-questioned vigorously, thoroughly, and with an understanding bom of familiarity. Appellant makes one final (related) argument: that the failure to provide advance notice violated due process. The contention is meritless. A defendant has a right to fair sentencing procedures, see United States v. Stevens, 851 F.2d 140, 143 (6th Cir.1988), but he has no due process right to be informed in advance of the identity of witnesses or of the expected substance of their testimony. At most, a “[defendant ... has a constitutional right not to be sentenced on the basis of invalid information and, therefore, must be given an opportunity to rebut any challenged information.” United States v. Fogel, 829 F.2d 77, 90 (D.C.Cir.1987) (citations omitted); see also Stevens, 851 F.2d at 143; United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir.1987); Kohley v. United States, 784 F.2d 332, 334 (8th Cir.1986). There was no shortfall here. We need not reinvent the wheel. From what we have already written, it is evident that appellant was given the requisite opportunity to (1) challenge the information contained in the PSI, (2) attempt to rebut the prosecution’s version of the facts, and" }, { "docid": "22320867", "title": "", "text": "to suggest how cross-examination might more fruitfully have been conducted or what material evidence, not available at the time, he would have submitted. On the other pan of the scale, there was scant potential for surprise: all of the matters traversed by the testimony were within the framework of, and covered by, the PSI — which had been available to defendant for upward of a week before the hearing. Moreover, it was Diaz-Villafane, by and large, who set the agenda for the evidence. In objecting to the PSI, he contested certain facts. He knew that the purpose of the sentencing hearing was to resolve those contests. See Fed.R.Crim.P. 32(c)(3)(D). Having put the prosecution to its proof of the disputed items, any claim of surprise on his part is as empty as a beggar’s purse. And there is more. We find it of decre-tory significance that defense counsel, although seeking unsuccessfully to block the testimony entirely, never moved for a continuance to prepare for cross-examination or to muster additional evidence. Appellant’s present claim that he was unfairly surprised is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency. See, e.g., United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986) (defendant’s failure to move for continuance despite delayed disclosure of files indicates lack of prejudice). If, indeed, this was a sneak attack, then a continuance would have been a complete cure. It is, we think, incumbent upon a party faced with such a situation to ask explicitly that the court grant the time needed to regroup, or waive the point. See Szeliga v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984) (“remedy for coping with surprise is not to seek reversal after an unfavorable verdict, but a request for continuance at the time the surprise occurs”); United States v. Long, 674 F.2d 848, 855 (11th Cir.1982) (similar). Appellant apparently did not need more time; the transcript shows that the witnesses were cross-questioned vigorously, thoroughly, and with an understanding bom of familiarity. Appellant makes one final (related) argument:" }, { "docid": "22727002", "title": "", "text": "other appropriate relief, at the point when Zannino “believed” that he could no longer testify. In our view, appellant’s present claim is toppled by his neglect to ask for a further continuance, or a mistrial, to meet the supposed exigency of which he now complains. Cf., e.g., United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert., denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986). If there was a legitimate problem, it was incumbent upon Zannino to bring it to the trial court’s attention in a timely fashion and ask for concinnous relief. The failure to do so constitutes a waiver. VI. POTPOURRI We touch briefly upon certain other points raised by appellant, none of which requires extended comment. A. Severance. After the district court narrowed the scope of trial to the three counts described supra, appellant moved for a further severance, alleging misjoinder. Fed. R.Crim.P. 8(a), 14. The district court denied the motion. Zannino polemizes against the ruling, but to no avail. Rule 8(a) authorizes joinder of offenses if they “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” All of the three offenses involved here were alleged by the Grand Jury to be predicate acts committed in furtherance of the racketeering enterprise and conspiracy. This court, and other courts of appeals, have consen-tiently held that offenses committed pursuant to the same (charged) racketeering enterprise and conspiracy may be joined in a single indictment since, in the terminology of Rule 8(a), they are based on “two or more acts or transactions connected together or constituting parts of a common scheme or plan.” See, e.g., United States v. Doherty, 867 F.2d 47, 63 (1st Cir.), cert. denied, — U.S. -, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989); United States v. Kragness, 830 F.2d 842, 861-62 (8th Cir.1987); United States v. Williams, 809 F.2d 1072, 1085-86 (5th Cir.), cert. denied, 484" }, { "docid": "16217760", "title": "", "text": "bankruptcy court ordered Shawmut disqualified unless its counsel entered an appearance, and Shawmut appeared within the allotted time. The district court correctly determined that LaRoche had acquiesced in this resolution of the representation issue, thereby waiving the present claim. Indeed, LaRoche played an active role in fashioning the resolution adopted by the bankruptcy court. Moreover, at no time did LaRoche suggest to the bankruptcy court that Shawmut should be disqualified notwithstanding its later appearance by counsel. As we have said on numerous occasions, we do not consider claims not raised in the trial court. In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1343 (1st Cir.1992) (“It is the general rule in this circuit that arguments not raised in the trial court cannot be raised for the first time on appeal.”); In re Boston Shipyard Corp., 886 F.2d 451, 455 (1st Cir.1989) (argument not raised before bankruptcy court will not be reviewed on appeal); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (“we have regularly declined to consider points which were not seasonably advanced below”); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1978) (“an issue not presented to the trial court cannot be raised for the first time on appeal”). C. Suffield’s Joinder Finally, LaRoche claims unfair surprise and prejudice as a consequence of the bankruptcy court decision allowing Suffield to join the creditors’ petition. La-Roche neither objected to Suffield’s joinder on the ground of prejudice, nor requested a continuance to permit the discovery he now says was necessary. Thus, the issue was not preserved for appeal. See, e.g., In re 604 Columbus Ave. Realty Trust, 968 F.2d at 1343; United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) (claim of surprise is “severely undermined, if not entirely undone,” by failure to request continuance). Moreover, as the district court correctly noted, no prejudice was occasioned by Suffield’s joinder on the day of the hearing, as LaRoche was well aware of the nature of the Suffield judgment claim, to which he raised no" }, { "docid": "22167559", "title": "", "text": "not prepared because of the failure of the Government to turn over evidence.” We conclude the district court’s handling of this issue was perfectly reasonable, and that it did not abuse its discretion. Ms. Ivy offers no persuasive basis for questioning the district court’s finding the government had done the best it could to provide discovery in a timely fashion. With respect to the second Wicker factor, prejudice, it is highly significant that the discovery in question was merely a transcription of Ms. Ivy’s own statements. It is difficult to believe neither Ms. Ivy nor her attorney were aware she had made these statements or that they were surprised when they learned the government planned to use the transcript against her at trial. See United States v. Rivera, 944 F.2d 1568, 1566 (11th Cir.1991) (defendant not unduly surprised or deprived of an adequate opportunity to prepare a defense where government provided discovery of defendant’s own statements immediately before opening argument); see also United States v. Basinger, 60 F.3d 1400, 1407 (9th Cir.1995) (defendant was not prejudiced by government’s failure to provide discovery because he could have anticipated the government would attempt to introduce such evidence). Furthermore, when, as in this case, the defendant does not request a continuance after receiving belated discovery, “a court can often assume that counsel did not need more time to incorporate the information into the defense’s game plan.” United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir.1993). Given the nature of the discovery and Ms. Ivy’s refusal to seek a continuance, the district court’s recommendation that Ms. Ivy and her attorney review the five-page report overnight and inform him if they believed the delay in discovery would prevent them from preparing an adequate defense was more than enough to alleviate the minimal prejudice resulting from the government’s delay. Finally, the third Wicker factor is essentially irrelevant, because Ms. Ivy made it clear she did not want a continuance. B. Motion for a Bill of Particulars Ms. Ivy, Ms. Traylor, and Mr. Nor-wood moved to dismiss the superseding indictment filed on November 3,1993, or in" }, { "docid": "7854239", "title": "", "text": "appeal that he suffered prejudice as a result of late-arriving discovery. Thus, in situations where defense counsel does not seek a continuance upon belated receipt of discoverable information, a court often can assume that counsel did not need more time to incorporate the information into the defendant’s game plan. United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir.1993) (citations omitted). Because Candelaria-Silva never requested a continuance, we need proceed no further. III. Rule 404(b) Claim Candelaria-Silva argues that the district court erred in admitting evidence that Carlos Morales-García, a passenger in the car driven by Candelaria-Silva on October 31, 1994, brandished and discarded a handgun during a car chase. We find no such error. Because the admission of Rule 404(b) evidence is committed to the sound discretion of the trial judge, we will reverse only for abuse of discretion. United States v. Manning, 79 F.3d 212, 217 (1st Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 147, 136 L.Ed.2d 93 (1996). Fed.R.Evid. 404(b) bars the admission of evidence of “other crimes, wrongs, or acts if used to prove the character of a person in order to show action in conformity therewith.” Rule 404(b) provides that although evidence of other crimes, wrongs, or acts is not admissible to prove criminal propensity, it may be admissible for other purposes that do not involve character, such as proof of intent, preparation, knowledge, or absence of mistake. See Manning, 79 F.3d at 217. Moreover, when charges of drug-trafficking are involved, this Court has often upheld the admission of evidence of prior narcotics involvement to prove knowledge and intent. See id. Here, the evidence of the arrest was intrinsic to the conspiracy charge, and consequently, does not fall within the purview of Rule 404(b). See id. (“Evidence intrinsic to the crime for which the defendant is on trial, accordingly, is not governed by Rule 404(b).”). The car chase evidence was properly admitted as probative of: (1) Candela-ria-Silva’s participation in the drug conspiracy because there was marijuana in the car that he was driving; (2) his residence at 30 Sabana Seca Ward, Manatí — the" }, { "docid": "7854238", "title": "", "text": "sufficient information upon which to base an informed plea and litigation strategy; by facilitating the raising of objections to admissibility prior to trial; by minimizing the undesirable effect of surprise at trial; and by contributing to the accuracy of the fact-finding process. Id. (advisory committee note). The district court has broad discretion to address discovery violations in light of their seriousness. See United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir.1996), cert. denied sub nom. Billmyer v. United States, — U.S. -, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997). This Court will not grant the “draconian relief' of suppression and reversal when it is “grossly disproportionate both to the prosecutor’s nonfeasance and any prejudice to the defense.” Id. Candelaria-Silva’s failure to request a continuance resolves his delayed discovery claim. As we have previously stated: When discovery material makes a belated appearance, a criminal defendant must ordinarily seek a continúance if he intends to claim prejudice.... As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery. Thus, in situations where defense counsel does not seek a continuance upon belated receipt of discoverable information, a court often can assume that counsel did not need more time to incorporate the information into the defendant’s game plan. United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir.1993) (citations omitted). Because Candelaria-Silva never requested a continuance, we need proceed no further. III. Rule 404(b) Claim Candelaria-Silva argues that the district court erred in admitting evidence that Carlos Morales-García, a passenger in the car driven by Candelaria-Silva on October 31, 1994, brandished and discarded a handgun during a car chase. We find no such error. Because the admission of Rule 404(b) evidence is committed to the sound discretion of the trial judge, we will reverse only for abuse of discretion. United States v. Manning, 79 F.3d 212, 217 (1st Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 147, 136 L.Ed.2d 93 (1996). Fed.R.Evid. 404(b) bars the admission of evidence of “other crimes, wrongs, or acts" }, { "docid": "23018712", "title": "", "text": "a basis for arguing, or at least developing evidence to show, that “Wally” and not Grady was the truck driver. However, in cases of belated disclosure, as opposed to outright nondisclosure, of exculpatory evidence, “the critical inquiry is ... whether the tardiness prevented defense counsel from employing the material to good effect.” United States v. Devin, 918 F.2d 280, 290 (1st Cir.1990). Here, the notation was produced early in the trial, well before the start of defendants’ case (indeed, prior to cross-examination of the government’s first witness).' We do not believe that Grady was prevented from making good use of the information or otherwise prejudiced by the delay. Although Grady argues that he was prejudiced by being deprived of the opportunity to investigate the “Wall” reference prior to trial, he never asked the trial court for a continuance to allow him to investigate the reference. We have held it “incumbent upon a party faced with such a situation to ask explicitly that the court grant the time needed to regroup, or waive the point....” United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Nor has Grady described any specific avenue of investigation that would have been pursued had the notation been disclosed earlier. Accordingly, we conclude that the belated disclosure of the “Wall” notation did not prejudice Grady and does not entitle him to a new trial. Grady contends that at the very least he should have been permitted to call Agent O’Brien to the stand to question him about the notation. The government’s unsupported response that O’Brien “likely had little to add concerning the notes of the Jeffrey Scott debriefing” is not at all comforting. What O’Brien might have added is that Scott did say that the driver referred to was Wally Barrett, information that would be helpful to Grady if it were admissible for its truth. But Scott’s statements to O’Brien during the debriefing would have been inadmissible hearsay if offered for their truth (as opposed to impeachment). Thus, the exclusion of O’Brien did not" }, { "docid": "22352235", "title": "", "text": "in situations where defense counsel does not seek a continuance upon belated receipt of discoverable information, a court often can assume that counsel did not need more time to incorporate the information into the defense’s game plan. See United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986). This general rule spells defeat for the majority of appellants’ delayed discovery claims. In every instance save one, appellants eschewed a request for a continuance. They have never satisfactorily explained how delays in production caused them any cognizable harm on those several occasions and the record, which reflects that appellants assimilated the new material without any perceptible hitch and used it to good effect, belies any such claim. The lack of demonstrable prejudice sounds the death knell for a “delayed discovery” claim. See United States v. Devin, 918 F.2d 280, 290 (1st Cir.1990) (explaining that a defendant who complains about tardiness in disclosure “cannot rely on whplly conclusory assertions but must bear the burden of producing, at the very least, a prima facie showing of a plausible strategic option which the delay foreclosed”). Hence, we find appellants’ delayed discovery claims, with one exception, to have been waived. The facts referable to the remaining dilatory disclosure claim can be succinctly summarized. Perez not only worked as a courier for David Sepulveda, but also supported his own cocaine habit by peddling drugs. After he was apprehended for selling cocaine, Perez agreed to testify against appellants in return for the United States Attorney’s help in seeking a reduced sentence. Since Perez was the only witness who tied all the defendants to David Sepulveda’s illicit enterprise, his testimony was extremely important to the government’s ease. When defense lawyers began cross-examining Perez, it became apparent that the FBI records furnished in pretrial discovery did not list Perez’s entire repertoire of criminal convictions, especially those stemming from state court proceedings and not reported to the FBI. When Perez acknowledged that a state probation officer had prepared a pre-sentence report for a New Hampshire court, appellants asked for a continuance so that they might obtain this document and more" }, { "docid": "22352234", "title": "", "text": "the nuances of the trial, this court must take a deferential view of rulings made in the course of that patrol. When discovery material makes a belated appearance, a criminal defendant must ordinarily seek a continuance if he intends to claim prejudice. A continuance affords time to study the newly emergent information, consider its possible ramifications, change trial strategy (if necessary), assess any potential prejudice, and determine how best to use the information. As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery. See, e.g., United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991); see also United States v. Diaz-Villa-fane, 874 F.2d 43, 47 (1st Cir.) (concluding, in an analogous context, that a defendant’s cry of unfair surprise “is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency”), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Thus, in situations where defense counsel does not seek a continuance upon belated receipt of discoverable information, a court often can assume that counsel did not need more time to incorporate the information into the defense’s game plan. See United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986). This general rule spells defeat for the majority of appellants’ delayed discovery claims. In every instance save one, appellants eschewed a request for a continuance. They have never satisfactorily explained how delays in production caused them any cognizable harm on those several occasions and the record, which reflects that appellants assimilated the new material without any perceptible hitch and used it to good effect, belies any such claim. The lack of demonstrable prejudice sounds the death knell for a “delayed discovery” claim. See United States v. Devin, 918 F.2d 280, 290 (1st Cir.1990) (explaining that a defendant who complains about tardiness in disclosure “cannot rely on whplly conclusory assertions but must bear the burden of producing, at the very least, a prima facie showing of a plausible" }, { "docid": "19879578", "title": "", "text": "subset of Brady material called “Giglio \" material. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). . The government persuasively maintains that there was no delayed disclosure at all because it immediately notified defense counsel when it learned of Nguyen's criminal record and faxed the record once the record was in its possession. For purposes of our analysis we will assume arguendo that there was a delayed disclosure. . See United States v. Smith, 292 F.3d 90, 102-103 (1st Cir.2002) C'[D]efense counsel must typically request a continuance to preserve a claim of prejudice by delayed disclosure of evidence.”); Sepulveda, 15 F.3d at 1178 (“As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery.”); United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.1989) (\"[A defendant's] claim that he was unfairly surprised is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency.”). Although we have said that other actions may preserve a delayed discovery claim, such as requesting a mistrial or moving to exclude evidence, the defendants failed to take these actions as well. See Smith, 292 F.3d at 103 (questioning whether defendant preserved discovery claim where defendant neither asked for a continuance nor moved for a mistrial); United States v. Lemmerer, 277 F.3d 579, 587 n. 2 (1st Cir.2002) (noting that defense counsel, though failing to ask for continuance, preserved discovery claim because of motion to exclude belatedly disclosed evidence). . Although Van also suggests that the court erred in preventing Nguyen’s counsel from presenting her theory of the case, he does not sufficiently develop this argument and thus it is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). In any event, the district court gave Nguyen's counsel ample opportunity to pursue the \"incitement theory” and only cut off her questioning when she attempted to introduce evidence concerning incidents unrelated to the July 25th beating. ." }, { "docid": "7854237", "title": "", "text": "(2) envelopes found in his apartment with a return address in Detroit, Michigan. See id. at 644-647 (Candelaria-Silva’s counsel stating: “I don’t have a problem [with admitting the envelopes into evidence].”). Since Candelaria-Silva did not raise the Rule 12(b)(3) issue in the trial court, he cannot successfully litigate it on appeal. See United States v. DeLutis, 722 F.2d 902, 909 (1st Cir.1983). Further, there is no chance of Candelaria-Silva’s proving that the alleged violation prejudiced his case thereby warranting a reversal under Cruz-Paulino, since he himself sought admission of the evidence to corroborate his theory that he was in the continental United States prior to the return of the indictment. II. Rule 16 Violation Candelaria-Silva argues that the district court abused its discretion in failing to exclude evidence that he gave a false name when he was arrested in Dorchester because of the government’s delayed disclosure of the arrest report. The discovery obligations set forth in Fed.R.Crim.P. 16 are designed: to contribute to the fair and efficient administration of justice by providing the defendant with sufficient information upon which to base an informed plea and litigation strategy; by facilitating the raising of objections to admissibility prior to trial; by minimizing the undesirable effect of surprise at trial; and by contributing to the accuracy of the fact-finding process. Id. (advisory committee note). The district court has broad discretion to address discovery violations in light of their seriousness. See United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir.1996), cert. denied sub nom. Billmyer v. United States, — U.S. -, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997). This Court will not grant the “draconian relief' of suppression and reversal when it is “grossly disproportionate both to the prosecutor’s nonfeasance and any prejudice to the defense.” Id. Candelaria-Silva’s failure to request a continuance resolves his delayed discovery claim. As we have previously stated: When discovery material makes a belated appearance, a criminal defendant must ordinarily seek a continúance if he intends to claim prejudice.... As a general rule, a defendant who does not request a continuance will not be heard to complain on" }, { "docid": "22727001", "title": "", "text": "defense case; thus, the jury, expecting to hear Zannino’s testimony, most probably held his failure to testify against him. In this way, appellant says that he was deprived of due process. We find this logomachical frock gaping at several seams. Most critically, there is not a shred of evidence that Zannino’s condition worsened to the point where he became medically unable to testify. There was excellent reason, tactically, for Zanni-no to avoid the witness stand. That he decided not to testify, and that his counsel intimated to the jury that his health precluded him from testifying, is a far cry from proving either the claimed deterioration or the etiology of the decision to stay off the witness stand. No further medical evidence was presented during the course of the trial and no change in circumstances was shown. On these facts, the assignment of error is infirm. There is also a second reason why the initiative collapses. We have scoured the record without unearthing any indication that the defense made a motion for mistrial, or any other appropriate relief, at the point when Zannino “believed” that he could no longer testify. In our view, appellant’s present claim is toppled by his neglect to ask for a further continuance, or a mistrial, to meet the supposed exigency of which he now complains. Cf., e.g., United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert., denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986). If there was a legitimate problem, it was incumbent upon Zannino to bring it to the trial court’s attention in a timely fashion and ask for concinnous relief. The failure to do so constitutes a waiver. VI. POTPOURRI We touch briefly upon certain other points raised by appellant, none of which requires extended comment. A. Severance. After the district court narrowed the scope of trial to the three counts described supra, appellant moved for a further severance, alleging misjoinder. Fed. R.Crim.P. 8(a), 14. The district court denied the motion. Zannino polemizes against the ruling, but to" }, { "docid": "19879577", "title": "", "text": "secure counsel of his own choice.”) (emphasis added) (citation omitted); see also United States v. Gaffney, 469 F.3d 211, 215-16 (1st Cir.2006). Nguyen was an indigent defendant. Although indigent defendants have the right to appointed counsel, Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), they have neither the right to be represented by counsel of their choosing, United States v. Poulack, 556 F.2d 83, 86 (1st Cir.1977), nor the right to demand different counsel except for good cause. Alien, 789 F.2d at 92. . Although a district court is not required to conduct a full formal hearing when presented with a motion for new counsel, it did in this case. See Woodard, 291 F.3d at 108 (\"The extent and nature of the inquiry may vary in each case; it need not amount to a full formal hearing.”). . See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evidence that is potentially useful to impeach a witness, the variety at issue here, is a subset of Brady material called “Giglio \" material. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). . The government persuasively maintains that there was no delayed disclosure at all because it immediately notified defense counsel when it learned of Nguyen's criminal record and faxed the record once the record was in its possession. For purposes of our analysis we will assume arguendo that there was a delayed disclosure. . See United States v. Smith, 292 F.3d 90, 102-103 (1st Cir.2002) C'[D]efense counsel must typically request a continuance to preserve a claim of prejudice by delayed disclosure of evidence.”); Sepulveda, 15 F.3d at 1178 (“As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result of late-arriving discovery.”); United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.1989) (\"[A defendant's] claim that he was unfairly surprised is severely undermined, if not entirely undone, by his neglect to ask the district court for a" }, { "docid": "16217761", "title": "", "text": "advanced below”); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1978) (“an issue not presented to the trial court cannot be raised for the first time on appeal”). C. Suffield’s Joinder Finally, LaRoche claims unfair surprise and prejudice as a consequence of the bankruptcy court decision allowing Suffield to join the creditors’ petition. La-Roche neither objected to Suffield’s joinder on the ground of prejudice, nor requested a continuance to permit the discovery he now says was necessary. Thus, the issue was not preserved for appeal. See, e.g., In re 604 Columbus Ave. Realty Trust, 968 F.2d at 1343; United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) (claim of surprise is “severely undermined, if not entirely undone,” by failure to request continuance). Moreover, as the district court correctly noted, no prejudice was occasioned by Suffield’s joinder on the day of the hearing, as LaRoche was well aware of the nature of the Suffield judgment claim, to which he raised no defense or challenge whatever. Affirmed; double costs to appellee. . In re LaRoche, 131 B.R. 253 (D.R.I.1991). . Bankruptcy Code § 303 provides, in pertinent part: (b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title— (1) by three or more entities each of which is ... a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute ..., if such claims aggregate at least $5,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; (c) After the filing of a petition under this section but before the case is dismissed or relief is granted, a creditor holding an unsecured claim that is not contingent, other than a creditor filing under subsection (b) of this section, may join in the petition with the same effect as if such joining creditor were a petitioning" } ]

[ { "docid": "7250373", "title": "", "text": "14, 1999. At the hearing, Judge Young denied a motion by Snyder for further continuance pending this court’s decision on Judge Harrington’s re-cusal. He then heard Snyder argue various grounds for a downward departure. Rejecting all of those grounds, Judge Young sentenced Snyder to 264 months, a sentence at the midpoint of the applicable guideline range. On March 6, 2000, Judge Young denied Snyder’s motion for a new trial. Snyder timely appealed his sentence and the denial of the new trial motion. We now consider this appeal and the appeal of Judge Harrington’s recusal order. II. DISCUSSION A. Recusal Did Judge Harrington commit reversible error in recusing himself from the case? Snyder claims that Judge Harrington lacked any valid authority for recusing himself, and that in the absence of such authority the judge had a duty to continue presiding. As for what prejudice Snyder suffered from the recusal, he claims that he was deprived of the opportunity to be sentenced by a judge intimately familiar with the facts of his case. Had the sentencing judge fully grasped these supposedly peculiar facts, Snyder believes, he would have granted Snyder a downward departure or, at the very least, would have sentenced Snyder at the low end, rather than the midpoint, of the applicable guideline range. For its part, the government argues that Judge Harrington’s decision to recuse himself was entirely appropriate under the circumstances: the judge had made many statements of record expressing hostility toward the government’s case, and for some 18 months he had refused to sentence Snyder as he was required to do on remand. Such conduct, the government argues, gave rise to an objective appearance of partiality, warranting recu-sal. Recusal of federal judges is governed by 28 U.S.C. § 455, subsection (a) of which is at issue here. That subsection provides that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The reach of the subsection is broad. It forbids partiálity whether grounded in an “interest or relationship” or a “bias or prejudice”; and it" } ]

[ { "docid": "7998254", "title": "", "text": "attempted obstruction of justice. Judge Jackson recognized that at the initial sentencing, he had taken Barry’s efforts at self-rehabilitation into consideration as mitigating factors. He nevertheless concluded that, in light of the reduced sentencing level, Barry’s “rehabilitative efforts [were] not sufficient to overcome the combined effect of those considerations previously mentioned,” namely, breach of trust and obstruction of justice. He therefore resentenced Barry to six months’ imprisonment, the same punishment imposed at the initial sentencing. Barry now appeals the district court’s denial of his motion for recusal and the resentencing. He asserts, as to the first, that because Judge Jackson was required by section 455(a) to recuse himself, this court must vacate his sentence and assign the case to another judge for resentencing. If we reject this position, Barry maintains that we must nevertheless return the case for resentencing on the ground, among others, that Judge Jackson had failed to consider evidence of genuine contrition. II. Discussion A. Motion to Disqualify This case illustrates the wisdom of Canon 3 A(6) of the Model Code of Judicial Conduct (1990), which states that a “judge should abstain from public comment about a pending or impending proceeding in any court.” As a consequence of Judge Jackson’s remarks, this court must consider for a second time whether he exhibited a bias against Barry that required his disqualification. Furthermore, the media reports of his Harvard speech may well have caused a number of persons in the Washington area to question his impartiality. The issue before us, however, is not whether Judge Jackson should have re-cused himself, but whether he was required by 28 U.S.C. § 455(a) to dó so. Section 455(a) reads as follows: Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. We have long held that to be disqualifying, the appearance of bias or prejudice must stem from an extrajudicial source. See Barry I, 938 F.2d at 1340; United States v. Heldt, 668 F.2d 1238, 1271-72 & n. 71 (D.C.Cir.1981), cert. denied sub nom. Hubbard v. United States, 456" }, { "docid": "2646642", "title": "", "text": "18 incident reports in three months. He moved to recuse the district judge based on his earlier statement. The district court denied the motion, noting that he would consider the statutory factors, and that his earlier statement was “subject to change, wholly or in part.” Later, the court said: And as [Martin’s counsel] has pointed out, I probably did tell him that, if he came back here again with more violations of this type, he would probably get ... a 35-month sentence. I think I probably did tell him, as [Martin’s counsel] set forth — I don’t challenge what [Martin’s counsel] put in his motion— that he could count on that. And, of course, I had — I made it very clear to the defendant that the ten-month sentence that he was receiving at that time was a very lenient sentence, in view of his terrible conduct while on supervised release. He has been nothing but trouble for every institution that he has been in. But he apparently wasn’t listening. I was trying to help him at that time, and to convince him to stop doing drugs, stop absconding, and start following the rules. The court noted the advisory nature of the Guidelines’ recommendation of 4 to 10 months’ imprisonment. The court expressed discouragement with Martin’s continuing conduct — failing to follow the rules of every facility he entered, sabotaging U.S. probation officers’ efforts to help him, and continually blaming others for his problems. The court sentenced him to 36 months’ imprisonment. II. This court reviews a denial of a motion to recuse for abuse of discretion. United States v. Wisecarver, 644 F.3d 764, 771 (8th Cir.2011). “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “Under § 455(a), disqualification is required if a reasonable person who knew the circumstances would question the judge’s impartiality, even though no actual bias or prejudice has been shown.” Wisecarver, 644 F.3d at 771. “[I]n general, reassignment should rest upon an appearance of bias or" }, { "docid": "2449933", "title": "", "text": "to the presentence report (PSR), and the district court adopted the PSR’s factual findings and conclusions. The PSR noted that the maximum punishment was 20 years and calculated the guideline range to be 37 to 46 months. On October 10, 1997, Anderson was sentenced by Judge McBryde to 46 months imprisonment, followed by three years of supervised release. Anderson then timely appealed to this Court. II. Discussion Anderson does not challenge his conviction. His appeal requests that his sentence be vacated and that the ease be remanded for resentencing before a different district court judge. Anderson contends that Judge McBryde abused his discretion and reversibly erred by refusing to recuse himself from Anderson’s ease after Anderson’s attorney testified against Judge McBryde in the Fifth Circuit Judicial Council proceedings. Anderson asserts that a reasonable person would harbor doubts about Judge McBryde’s ability to remain impartial in a ease involving an attorney who had testified adversely to Judge McBryde in Judicial Council proceedings that could lead to him being reprimanded or even sanctioned. We find Anderson’s contentions valid. Title 28 U.S.C. § 455(a) provides that a federal judge shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned. A motion for recusal is within the discretion of the district judge and the denial of such a motion will not be reversed on appeal unless the judge has abused his discretion. Garcia v. Woman’s Hosp. of Texas, 143 F.3d 227, 230 (5th Cir.1998). This Circuit has recognized that each section 455(a) case is extremely fact intensive and fact bound, and must be judged on its unique facts and circumstances rather than by comparison to similar situations considered in prior jurisprudence. United States v. Jordan, 49 F.3d 152, 157 (5th Cir.1995). The party seeking recusal must demonstrate that, if a reasonable person knew of all of the circumstances, they would harbor doubts about the judge’s impartiality. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 (5th Cir.1994). Thus, if a judge concludes that his impartiality might be reasonably questioned, then he should find that the statute requires his" }, { "docid": "22698294", "title": "", "text": "in light of 18 U.S.C. § 3553(a). The court held that Booker constituted an exception to the mandate rule, as it was an intervening “radical change in the law governing sentencing guideline applications” that required the court to apply the Guidelines in an advisory manner by imposing a reasonable sentence in light of § 3553(a). The court then imposed a sentence of 120 months’ imprisonment. II. Discussion A. Recusal from Resentencing On appeal, Amedeo argues that the district court erred in failing to recuse itself for his resentencing. We review a judge’s decision not to recuse for an abuse of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.2004). Section 455 of Title 28 of the U.S. Code creates two conditions for recu-sal. United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.2003). First, § 455(a) provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). Under § 455(a), recusal is appropriate only if “an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which re-cusal was sought would entertain a significant doubt about the judge’s impartiality.” Patti 337 F.3d at 1321 (citation omitted). And “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994) (citation omitted). Second, § 455(b) provides that a judge also shall disqualify himself where, inter alia, he actually “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1) (emphasis added). The bias or prejudice “must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case.” McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990) (citation omitted). “[Ojpinions held by judges as a result of what they learned in earlier proceedings” do not constitute bias or prejudice. Liteky, 510 U.S. at 551, 114 S.Ct. at 1155. Thus, “[i]t has long been" }, { "docid": "12857831", "title": "", "text": "if any issues may arise during the trial with respect to Funches which may necessitate rulings by the Court which might give rise to an appearance of partiality in light of the relationship.” Reviewing the district court’s denial of Cole’s recusal motion for abuse of discretion, see United States v. DeTemple, 162 F.3d 279, 283 (4th Cir.1998), we disagree. The standard for recusal is not so readily met. As the trial judge informed the litigants, he had not had any contact whatever with Funches for over ten years. And the last time he did see Funches, the trial judge was practicing law and happened to walk into the courtroom where Funches was being sentenced. The judge further related that he had reviewed Canon 3C of the Code of Judicial Conduct for United States Judges (Disqualification), as well as 28 U.S.C. § 455 (Disqualification) and 28 U.S.C. § 144 (Bias or prejudice). Finally, he stressed that he could be fair and impartial in presiding over the trial and issuing various rulings. This explanation and these assurances dispelled any reasonable concern that the trial judge was somehow biased by virtue of the fact that he knew Funches. There is simply no evidence that the judge’s “impartiality might reasonably be questioned,” or that “he ha[d] a personal bias or prejudice concerning a party.” 28 U.S.C. § 455. In United States v. Lovaglia, 954 F.2d 811 (2d Cir.1992), our sister circuit held that recusal was not required in a case involving a family whose businesses were victimized by the defendants’ RICO violations because, inter alia, the judge had not had a social relationship with the family for seven or eight years prior to the sentencing proceedings. Id. at 816-17. Here, it was over ten years since the trial judge had had any contact with Funches, let alone a social relationship. Cole claims that the denial of his Brady motions regarding Funches’ psychiatric history created an appearance of partiality requiring recusal. But we have already held that it was not an abuse of discretion to deny them. Further, “judicial rulings alone almost never constitute a" }, { "docid": "7250376", "title": "", "text": "of justice. See Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 491 (1st Cir.1989) (noting that the judicial system would be “paralyzed” were standards for recusal too low). For these reasons, “[a] trial judge must hear cases unless [there is] some reasonable factual basis to doubt the impartiality or fairness of the tribunal.” Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir.1979). Thus, under § 455(a) a judge has a duty to recuse himself if his impartiality can reasonably be questioned; but otherwise, he has a duty to sit. Most appeals arising under § 455(a) are brought after the trial judge has refused to recuse himself on motion of a party. See, e.g., In re United States, 158 F.3d 26, 27 (1st Cir.1998); Blizard, 601 F.2d at 1219. In such cases we have applied an abuse of discretion standard. As we stated in In re United States: [A] decision whether to disqualify [is] in the first instance committed to the district judge. And, since in many cases reasonable deciders may disagree, the district judge is allowed a range of discretion. The appellate court, therefore, must ask itself not whether it would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by [a] reasonable reading of the record. 158 F.3d at 30 (citations and internal quotation marks omitted). Furthermore, we have recognized that the duty to recuse and the duty to sit do not exert equal pull; in close cases, “doubts ordinarily ought to be resolved in favor of recusal.” Id. No one suggests that different principles of review apply here, where a judge has re-cused himself sua sponte, Hence, our review in this case, as in our prior cases, is both deferential and weighted: we inquire whether, in light of the policy favoring recusal in close cases, Judge Harrington abused his discretion in finding that he had a duty to recuse himself. We find no such abuse of discretion. Given Judge Harrington’s persistent and vociferous objections to Snyder’s federal prosecution, and, more importantly, given his outright unwillingness" }, { "docid": "21582638", "title": "", "text": "discrimination suit. There the court found that the judge’s impartiality might reasonably be questioned and that he “had an independent duty to recuse himself ... under 28 U.S.C. § 455(a).” See also Nicodemus v. Chrysler Corp,, 596 F.2d 152 (6th Cir.1979). Real Question Still Unanswered There is no doubt about the words spoken or that the circumstance of their origin in judicial proceedings is irrelevant under § 455(a). Thus, the district judge was faced squarely with the Cowden question: would a reasonable, responsible — perhaps even a non-judge — person have doubts about the judge’s impartiality? This is a question initially for the judge whose impartiality is challenged. It is not a question for this court until the trial judge involved has ruled, and then only on appellate review. What Should Happen Here? We hold that the district judge’s finding of no basis for disqualification rested on an incorrect principle of law and cannot stand. What should happen now?— revoke all actions of the district judge subsequent to the motion to disqualify? — set aside the sentence given on indictment II? —or remand for appropriate determination? Since the accepted standard of judicial review — whether the district judge abused his discretion in ruling upon a § 455(a) motion to recuse, confides, as does § 455(a) itself, so much discretion in the district judge, he ought to have the responsibility for determining initially whether, in the light of his statement about Chantal, his impartiality might reasonably be questioned by a responsible, reasonable person. We therefore reverse and remand for a determination by the district judge as to whether he should recuse himself under § 455(a). REVERSE AND REMAND. . The opinion is on ice cold questions of law with no aspersions directed or intimated respecting the morally ethical actions of the District Judge who exercised painstaking concern for the accused’s rights including his capacity to stand trial. . While free on bond pending sentencing, Chan-tal engaged in additional drug related activities which ultimately resulted in the return of Indictment II on December 16, 1987. See, infra. . As to Defendant's Motion" }, { "docid": "22698293", "title": "", "text": "12, 2005, the Supreme Court issued its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held, inter alia, that the Sentencing Guidelines could not be imposed in a mandatory manner, but that sentencing courts were required to consider the Guidelines along with other statutorily relevant factors. Id. at 258-67, 125 S.Ct. at 764-69. The Booker Court also held that this remedial holding was to be applied to cases pending on direct review. Id. at 268, 125 S.Ct. at 769. On February 1, 2005, the district court issued an amended notice of its intent to consider a departure under § 4A1.3 based on Ame-deo’s sexual contact with Rozelle. Prior to the resentencing hearing, Amedeo filed a motion requesting that the district judge recuse himself, which the court denied. At the resentencing hearing on March 11, 2005, the district court calculated the Guidelines range at 37-46 months, decided not to impose an upward departure, and found that the Guidelines range did not reflect the seriousness of the crime in light of 18 U.S.C. § 3553(a). The court held that Booker constituted an exception to the mandate rule, as it was an intervening “radical change in the law governing sentencing guideline applications” that required the court to apply the Guidelines in an advisory manner by imposing a reasonable sentence in light of § 3553(a). The court then imposed a sentence of 120 months’ imprisonment. II. Discussion A. Recusal from Resentencing On appeal, Amedeo argues that the district court erred in failing to recuse itself for his resentencing. We review a judge’s decision not to recuse for an abuse of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.2004). Section 455 of Title 28 of the U.S. Code creates two conditions for recu-sal. United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.2003). First, § 455(a) provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). Under § 455(a), recusal is appropriate only if “an objective, disinterested, lay observer fully informed" }, { "docid": "12067302", "title": "", "text": "the district court that he had been indicted on the tax evasion charges and after Martorano had already waived any conflicts of interest that might arise as a result of his counsel being indicted on these charges. See Jt.App. at 20-22. Judge Hannum received the subpoena requiring him to testify at Simone’s trial after Martorano had pled guilty in the face of being informed that, if he did so, he might receive the maximum sentence of life imprisonment without possibility of parole. Finally, Judge Hannum noted that the second, more severe newspaper criticism of his testifying occurred after Judge Hannum had first sentenced Martorano to life imprisonment without the possibility of parole. Judge Hannum therefore could not have been influenced by the second article in his original choice of Martorano’s sentence. Judge Hannum ruled that these facts would not lead a reasonable person to question his impartiality, or to conclude that he had violated any canon or rule by testifying for Simone. He also ruled that only “speculation” would lead a reasonable person to conclude that he had imposed a harsh sentence to rehabilitate the alleged damage to his reputation assertedly caused by the first newspaper story. Judge Han-num therefore found no basis for recusing himself under 28 U.S.C. § 455(a). Jt.App. 56-57. Judge Hannum also denied a motion that he recuse himself for personal bias under 28 U.S.C. § 144 as Martorano did not attach the required party affidavit alleging personal bias, and because Martorano’s attorney’s affidavit did not set forth facts that would lead a reasonable person to conclude that Judge Hannum was biased against the defendant. Jt.App. at 58-59. Judge Hannum also held that assertions made by Kevin Rankin, Martorano’s co-defendant, did not warrant his recusal from Martorano’s resentencing. Judge Hannum had presided over Rankin’s first trial on narcotics charges arising out of the same drug importation scheme that Martorano pled guilty to running. After Rankin’s convictions were reversed on appeal, Rankin sought to have Judge Hannum disqualified from presiding at his retrial. In support of his motion, Rankin stated in an affidavit that Judge Hannum had" }, { "docid": "14725768", "title": "", "text": "which Johnson was not in custody, and thus not subjected to custodial interrogation. In addition, although Johnson was in custody at the time Officer Bohlen read the search warrant aloud, we have already determined that this action did not amount to interrogation. Based on these findings, at no time prior to Johnson’s interrogation at the police station were police officers required to read Johnson his Miranda warnings. This case is simply not the type of situation Seibert intended to address. Finding that the district court did not plainly err in denying Johnson’s motion to suppress, we now turn to Johnson’s remaining arguments on appeal. B. Recusal In Johnson’s first ease (09-CR-83), Judge Stadtmueller recused himself five months into the case, noting that he was required to recuse under 28 U.S.C. § 455(a) and (b)(3). In Johnson’s second case (10-CR-121), Judge Stadtmueller presided over the trial, but recused himself prior to sentencing, citing the same statutory authority as the first case. Johnson now argues' for the first time on appeal that Judge Stadtmueller’s failure to recuse himself sua sponte in the second case deprived Johnson of having the same judge preside over both his trial and sentencing, and implicated the public interest in the impartial administration of justice. Under § 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A judge shall also disqualify himself “[w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” 28 U.S.C. § 455(b)(3). In this circuit, a § 455(a) claim of bias is not properly preserved for appeal unless a defendant seeks a writ of mandamus. United States v. Diekemper, 604 F.3d 345, 351-52 (7th Cir.2010). This rule upholds the general principle that a post hoc motion for recusal does little to remedy a § 455(a) violation, as the purpose of § 455(a) is to preserve the appearance of impartiality. Id. at 352. Although this" }, { "docid": "8988089", "title": "", "text": "address Dehghani’s contention that the district court abused its discretion in denying his motion to recuse. We review the denial of a motion to recuse for abuse of discretion. Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.2002) (en banc). A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The question is “whether the judge’s impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.” Moran, 296 F.3d at 648. Because a judge is presumed to be impartial, “the party seeking disqualification bears the substantial burden of proving otherwise.” United States v. Denton, 434 F.3d 1104, 1111 (8th Cir.2006). In denying the motion to recuse, Judge Fenner concluded that Dehghani’s threat against him was an effort to manipulate the criminal justice system by attempting to obtain a different judge for sentencing. Judge Fenner explained that Dehghani did not “have the capacity by any stretch of the imagination to carry out” the threat against him. However, the court did find that Dehghani’s threats against jail personnel were serious and recommended that Dehghani’s transfer to federal custody be expedited. During sentencing, the court increased Dehghani’s advisory guidelines range and increased his sentence beyond that range partly because of Dehghani’s efforts to obstruct justice by threatening the judge, jail personnel and others. Dehghani contends that an average person would question the impartiality of the court because his threat against Judge Fenner appeared credible, the court’s findings regarding the seriousness of his various threats were inconsistent, and his ultimate sentence was based on the threat that formed the basis for the recusal request. First, Judge Fenner’s finding that the threat against him was an attempt to manipulate the criminal justice system is amply supported by the record. Judges are not required to recuse themselves any time they are threatened. See United States v. Gamboa, 439 F.3d 796, 817 (8th Cir.2006). Dehghani’s threat against the judge was contained in the same letter as threats to assassinate President Bush, to plant bombs on city" }, { "docid": "21582639", "title": "", "text": "the sentence given on indictment II? —or remand for appropriate determination? Since the accepted standard of judicial review — whether the district judge abused his discretion in ruling upon a § 455(a) motion to recuse, confides, as does § 455(a) itself, so much discretion in the district judge, he ought to have the responsibility for determining initially whether, in the light of his statement about Chantal, his impartiality might reasonably be questioned by a responsible, reasonable person. We therefore reverse and remand for a determination by the district judge as to whether he should recuse himself under § 455(a). REVERSE AND REMAND. . The opinion is on ice cold questions of law with no aspersions directed or intimated respecting the morally ethical actions of the District Judge who exercised painstaking concern for the accused’s rights including his capacity to stand trial. . While free on bond pending sentencing, Chan-tal engaged in additional drug related activities which ultimately resulted in the return of Indictment II on December 16, 1987. See, infra. . As to Defendant's Motion to Recuse — After a full review of the written submissions of the parties on the within motion it is hereby DENIED. The Defendant has failed to support the motion with the affidavit required under 28 U.S.C. § 144. Further, the allegation of fact in support of the motion clearly implies that the basis for the claim of bias or prejudice is information known to the judge because of his performance of judicial duties in Defendant’s prior case. The information is not from an “extra-judicial source\" and is therefore not an adequate basis to force recusal. See In Re: Cooper, 821 F.2d 833, 838 (1st Cir.1987) and United States v. Grinned Corp., 384 U.S.C. [sic] 563, 593, 86 S.Ct. 1698, 1715, 16 L.Ed.2d 778 (1966). The Court FINDS that the Defendant has failed to show any circumstance on which this judge's \"impartiality might reasonably be questioned\" 28 U.S.C. § 455(a). SO ORDERED. (Emphasis added). . In Gomez v. United States, - U.S. -, --, 109 S.Ct. 2237, 2248, 104 L.Ed.2d 923, 940 (1989), the Supreme" }, { "docid": "14725769", "title": "", "text": "himself sua sponte in the second case deprived Johnson of having the same judge preside over both his trial and sentencing, and implicated the public interest in the impartial administration of justice. Under § 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A judge shall also disqualify himself “[w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” 28 U.S.C. § 455(b)(3). In this circuit, a § 455(a) claim of bias is not properly preserved for appeal unless a defendant seeks a writ of mandamus. United States v. Diekemper, 604 F.3d 345, 351-52 (7th Cir.2010). This rule upholds the general principle that a post hoc motion for recusal does little to remedy a § 455(a) violation, as the purpose of § 455(a) is to preserve the appearance of impartiality. Id. at 352. Although this case presents somewhat unusual procedural circumstances, the same reasoning applies. Therefore, we apply the same standard. Accord United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir.2001) (“Because a party waives his § 455(a) recusal argument by failing to petition for a writ of mandamus, it follows that he also waives it by failing altogether to raise it at the district court level”). Thus, Johnson’s § 455(a) challenge is waived. “ ‘It is less clear under our case law whether we may review a refusal to recuse under section 455(b) when the argument is raised for the first time on appeal,’ but assuming that we can, that review will be for clear error.” Diekemper, 604 F.3d at 351 (quoting United States v. Smith, 210 F.3d 760, 764 (7th Cir.2000)). As in Diekemper, Johnson did not raise the issue of recusal before the district court but now argues that the judge had a duty to recuse himself sua sponte. See id. Accordingly, we review Johnson’s § 455(b)(3) challenge under a clear error standard. Johnson cannot meet" }, { "docid": "22101183", "title": "", "text": "v. Nobel, 696 F.2d 231 (3d Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983); United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982); Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 263-64 (1978). We need not decide whether to reconsider Morgan in light of Delesdernier and the eases that have followed Delesdernier. It would be difficult to find a “waiver” on this record because neither Murphy nor Lydon knew before sentencing of the vacation plans the only source of the appearance of impropriety. We believe, however, that the absence of a waiver is not dispositive. The question here is not really whether Judge Kocoras was required to recuse himself when Murphy filed his motion. Judge Kocoras already had imposed sentence; there were no further proceedings from which Judge Kocoras could be recused. What Murphy wants is not recusal from future proceedings but the nullification of everything that went before. We conclude that this is not the appropriate consequence of a recusal for appearance of impropriety. In cases decided under § 455(a), disqualification runs from the time the motion was made or granted. In Pepsico, our most recent case under § 455(a), the court ordered the district judge to stand aside from the time a party filed the motion for recusal; we did not vacate all of the judge’s earlier orders and require the new judge to start afresh. Our research has not turned up any case involving mere appearance of impropriety in which the court set aside decisions that had been taken by the district judge before any party asked for recusal. The statute requiring recusal when the judge’s impartiality might reasonably be questioned vindicates interests of the judicial system as a whole. It is important to the administration of justice that judges both be and appear to be impartial. When a question about impartiality reasonably arises, the judge must stand aside in order to preserve public confidence in the courts. But this does not imply that a judge who is a close friend of counsel will provide an unjust" }, { "docid": "2449940", "title": "", "text": "only appellate point the denial of recusal. My colleagues hold that Judge McBryde should have recused and, further, that defendants’ sentences are vacated. I respectfully dissent. My colleagues’ interpretation of § 455(a) in these cases conflicts with our precedents and, by unnecessarily provoking more motions and requiring more recusals, will create serious problems for the efficient administration of justice in the federal courts. In addition, they engage in no analysis of the remedy, although sentencing the defendants was harmless error in these cases. Finally, their decisions unfairly pile on the punishments that have already been imposed on Judge McBryde by the Fifth Circuit Judicial Council. I. The panel’s principal error is to review Judge MeBryde’s recusal decision only in hindsight. The defendants’ recusal motions must be viewed in terms of events as the parties knew them at the time. The public defenders had testified against Judge McBryde and the disciplinary hearing was over, but no decision had yet been rendered. The potential seriousness of the proceeding was beyond dispute, but at that stage, particularly given the novelty of the proceeding, its outcome could hardly have been foreseen. There is no reason to think that Judge McBryde would have had it in for the clients of people who were testifying against him. Every judge must develop a thick skin against criticism, and most judicial conduct complaints come to nought. A reasonable person, knowing all the circumstances, would not have had reason to doubt the judge’s impartiality toward these defendants. See In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir.1993). The public defenders were not responsible for convening the hearing. There is no meaningful distinction between their testimony against Judge McBryde in the hearing and lawyers’ publicly questioning a presiding judge’s impartiality or ability to handle a ease. Yet the impact of this criticism is treated differently by the panel, apparently because it later resulted in sanctions against Judge McBryde. The panel’s unwarranted and stringent standard for recusals will hinder the effective administration of justice. Although courts must be mindful that maintaining the appearance of partiality is at least as important" }, { "docid": "10130271", "title": "", "text": "made three further statements about Ali to an FBI agent — specifically that “Ali provides [Hassan] a list and [she] collects the money and gives it to Amina Ali,” that certain money was “provided to Ms. Ali,” and that “Amina Ali spoke about jihad.” In their closing arguments, Ali and Hassan defended their actions primarily on the basis that they intended to provide humanitarian relief in Somalia. However, the jury returned a guilty verdict on all counts. For Ali, the district court calculated an advisory sentencing guidelines range of 360 months to life in prison. The court decided to vary downward to a sentence of 240 months’ imprisonment. For Hassan, the court calculated an advisory sentencing guidelines range of 360 to 372 months in prison. The district court opted to vary downward from Hassaris advisory guidelines range, imposing a sentence of 120 months’ imprisonment. Ali and Hassan appeal. II. Discussion A. Recusal Ali and Hassan contend that the trial judge should have recused himself from this case. This contention is being raised for the first time on appeal, meaning that our review is for plain error. See United States v. Burnette, 518 F.3d 942, 945 (8th Cir.2008). A judge shall recuse from a case if “his impartiality might reasonably be questioned” or “[w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(a), (b)(1). “A party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir.2003) (quoting Pope v. Fed. Express Corp., 974 F.2d 982, 985 (8th Cir.1992)). The Supreme Court has explained that: [Ojpinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that" }, { "docid": "7250369", "title": "", "text": "LYNCH, Circuit Judge. In this unusual case, a trial judge sua sponte recused himself from sentencing because he found himself “unwilling, as a matter of conscience” to apply the U.S. Sentencing Guidelines as interpreted by this court. The defendant, who might have otherwise benefitted from the judge’s lenient views, claims that the judge had a duty to sit, that his decision to recuse himself was therefore in error, and that the case should be remanded back to the judge for resentencing. In the alternative, the defendant objects to the sentence imposed upon him by a different judge to whom his case was reassigned, as well as that judge’s decision to deny his motion for a new trial. The primary question in the case pits a judge’s duty to sit, if there is no reason to recuse, against his duty not to sit, if a reasonable person could doubt his impartiality. We uphold the trial judge’s decision to recuse himself and reject the defendant’s other attacks. I. BACKGROUND Eric Snyder was convicted after a jury trial of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). At sentencing, the trial judge, Judge Harrington, found the defendant to be an armed career criminal under 18 U.S.C. § 924(e) and calculated the applicable guideline range at 235 to 293 months. However, after expressing concern during the sentencing hearing that the range was too harsh, Judge Harrington chose to depart downward, explaining his decision in a published memorandum. See United States v. Snyder, 954 F.Supp. 19, 22 (D.Mass.1997) (hereinafter “Snyder I”). In his view, a downward departure was justified because had Snyder been prosecuted and convicted under state law, he would have been sentenced to a far shorter prison term than that prescribed by the federal Sentencing Guidelines. Such sentencing disparity, Judge Harrington argued, effectively grants federal prosecutors “unbridled power” to single out “local” offenders for disparately long federal sentences. Accordingly, Judge Harrington departed downward in order to bring Snyder’s sentence closer to the sentence he would have received in state court, sentencing Snyder to 180" }, { "docid": "9332368", "title": "", "text": "because of his bias against the defendants. After pronouncing the sentence and judgment, the judge requested the defendants and their attorneys to approach the bench. He then stated that he had had to separate his feelings about the defendants’ business from the defendants in imposing the sentence. He concluded, however, by noting that he had tried his best to keep his feelings about the type of business in which the defendants were engaged out of the sentencing and believed he had succeeded. Reuben Sturman argues that the judge’s comments indicate a bias which effected the entire four-month trial and previous years of motions and discretionary rulings. The defendant asserts that because the judge failed to recuse himself at the outset of the case, the convictions in the case must be reversed. A federal judge is required to recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This Circuit has determined that whenever a judge’s impartiality is questioned, it must be determined whether “a reasonable, objective person, knowing all the circumstances, would not have questioned [the judge’s] impartiality.” Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir.), cert. denied, 111 S.Ct. 508, 112 L.Ed.2d 520 (1990); see also H.R.Rep. No. 1453, 93d Cong., 2d Sess. 4, reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6354. Under the test established in Hughes, this Court must look at all the circumstances surrounding the case to determine whether a reasonable person would believe the judge was impartial. Several factors support a finding that Judge White acted impartially during the trial. First, the defendants can point to no decision on the part of the judge that clearly demonstrated bias. The contentions in the appeal that raise abuse of discretion issues have been found to be without merit. Second, the sentences given the defendants, rather than exhibiting bias against the defendants, are substantially below the level requested by the government and appear fair under the circumstances. Third, this Court may take at face value Judge White’s assertion that he set his feelings about the defendants’ business aside." }, { "docid": "1083672", "title": "", "text": "to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate. Id. We defer to this reasoning in the So-lem opinion, and, therefore, hold that the gravity of defendant’s crimes justified the consecutive three-year sentences imposed under counts 31 through 34. We find that defendant’s sentence, though severe in comparison to sentences imposed for other crimes within this jurisdiction, see United States v. Bilanzich, 771 F.2d 292 (7th Cir.1985), and sentences imposed for similar crimes elsewhere, see United States v. Wilkes, 732 F.2d at 1154, was appropriate given the unique facts of this case. The sentence accordingly did not constitute cruel and unusual punishment. V. RECUSAL OF DISTRICT JUDGE Defendant’s final challenge to the district court’s denial of his motion to correct an illegal sentence relates to the identity of the district judge who denied defendant’s claim. Specifically, defendant contends that this court must vacate Judge Noland’s denial of Rule 35(a) relief to defendant because Judge Noland previously had recused himself from further consideration of defendant’s case. Judge Noland issued his recusal order sua sponte immediately after sentencing defendants on Counts 26 through 34, subsequent to defendant’s first trial. Despite this recusal order, Judge Noland denied two post-trial Rule 35 motions filed by defendant. As we have indicated, Judge Noland’s denial of defendant’s second Rule 35 motion forms the basis of the present appeal. Defendant contends that Judge Noland recused himself from further consideration of defendant’s case because Judge Noland harbored personal bias or prejudice against him. See 28 U.S.C. § 455 (Supp.1985). Otherwise, defendant maintains, Judge No-land would have had a “duty to sit” on all proceedings involving defendant’s case. See Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497, 525-26 (D.S.C.1975). We disagree. We observe that this court already has determined that Judge Noland disqualified himself from" }, { "docid": "7250375", "title": "", "text": "forbids not only the reality of partiality but its objective appearance as well. Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). As the Supreme Court has pithily characterized the subsection: “Quite simply and quite universally, recusal [i]s required whenever ‘impartiality might reasonably be questioned.’ ” Id. (quoting 28 U.S.C. § 455(a)). Nevertheless, judges are not to recuse themselves lightly under § 455(a). See H.R.Rep. No. 93-1453, at 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355 (“[Section 455(a) ] should not be used by judges to avoid sitting on difficult or controversial cases.”). As Snyder contends, an erroneous recusal may be prejudicial in some circumstances. See United States v. Arache, 946 F.2d 129, 140 (1st Cir.1991) (finding that “there appears to be some force” to argument that recusal may prejudice defendant where recusing judge has become familiar enough with facts of case to question reliability of key testimony). In any event, the unnecessary transfer of a case from one judge to another is inherently inefficient and delays the administration of justice. See Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 491 (1st Cir.1989) (noting that the judicial system would be “paralyzed” were standards for recusal too low). For these reasons, “[a] trial judge must hear cases unless [there is] some reasonable factual basis to doubt the impartiality or fairness of the tribunal.” Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir.1979). Thus, under § 455(a) a judge has a duty to recuse himself if his impartiality can reasonably be questioned; but otherwise, he has a duty to sit. Most appeals arising under § 455(a) are brought after the trial judge has refused to recuse himself on motion of a party. See, e.g., In re United States, 158 F.3d 26, 27 (1st Cir.1998); Blizard, 601 F.2d at 1219. In such cases we have applied an abuse of discretion standard. As we stated in In re United States: [A] decision whether to disqualify [is] in the first instance committed to the district judge. And, since in many cases reasonable deciders may disagree, the" } ]

[ { "docid": "15120664", "title": "", "text": "clear that an insider creditor-the Maidman Trust-is the only party that would likely benefit from Section 505 review. At the same time, a reassessment of the Properties would threaten to prejudice the Tax Lien Purchasers and the City of New Haven as outside creditors. Section 505 was enacted to protect creditors from the prejudice caused by an ailing debtor’s failure to contest tax assessments. See, e.g., City Vending of Muskogee, 898 F.2d at 125; Piper Aircraft, 171 B.R. at 418; AWB, 144 B.R. at 277. It was not enacted to afford debtors a second bite at the apple at the expense of outside creditors. Because the exercise of Section 505 review in this case would frustrate the purpose of the statute, we affirm the bankruptcy court’s decision to abstain from redetermining Debtor’s tax liability. CONCLUSION We have considered Debtor’s arguments and find them to be without merit. Accordingly, the district court order affirming the bankruptcy court’s decision is affirmed. . The phrase “any tax” encompasses both federal and state tax liabilities, including state real property taxes, state sales taxes, city ad valorem taxes, federal income taxes, and federal employment taxes. See In re Galvano, 116 B.R. 367, 372 n. 6 (Bankr.E.D.N.Y.1990) (citing cases). . Congress has also built into Section 505 \"certain safeguards to protect states from unwarranted federal intrusion.” In re Super Van, Inc., 161 B.R. 184, 192 (Bankr.W.D.Tex.1993). For example, if the amount or legality of a tax was contested before and adjudicated by any judicial or administrative tribunal of competent jurisdiction before the commencement of the bankruptcy case, then relief under Section 505 is not available. See 11 U.S.C. § 505(a)(2)(A). See also See Northbrook Partners, 245 B.R. at 118 (recognizing the need to weigh the goals of promoting bankruptcy relief against the state’s interest in applying and enforcing its own law). . Debtor also contends that the Maidman Trust must, as a matter of law, be deemed an outsider creditor of Debtor because, as a successor to the FDIC, it is \"cloaked with all of the FDIC’s rights and privileges,” including the right to outsider status." } ]

[ { "docid": "10439192", "title": "", "text": "Congress did not intend, however, that the amount of such debt or claim, including the theories of recovery for such conduct, was to be limited by the section. C. Policy Considerations Sound policy also supports our decision. First, in the absence of the fraud that gave rise to the nondischargeable, compensatory portion of the debt, there would be no liability for punitive damages. “To discharge.an ancillary debt which would not exist but for a nondischargeable debt seems erroneous.” In re Roberti, 201 B.R. at 623 (quoting In re Weinstein, 173 B.R. 258, 273-75 (Bankr.E.D.N.Y.1994)) (internal quotations omitted). Second, our result is consistent with the “fresh start” policy of the bankruptcy code. As the Supreme Court has stated, “the opportunity for a completely unencumbered new beginning [is limited]” to the “honest but unfortunate debtor.” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659-60. Where a debtor has committed fraud under the code, he is not entitled to the benefit of a policy of liberal construction against creditors. Id.; Birmingham, Trust, 755 F.2d at 1477. Cf. In re Braen, 900 F.2d 621, 625 (3d Cir.1990) (“Although it is true that the bankruptcy laws were generally intended to give troubled debtors a chance, the nondischarge-ability exceptions reflect Congress’ belief that debtors do not merit a fresh start to the extent that their debts fall within § 523.”), cert. denied, 498 U.S. 1066, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991). We think it unlikely that Congress, in excepting fraud from dis-chargeability, “would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan, 498 U.S. at 287, 111 S.Ct. at 659. Furthermore, the amount of actual damages in consumer fraud cases, although significant to the plaintiffs, is often not large. Without including treble damages in the non-dischargeable debt, victims of fraud will have even greater difficulty obtaining competent legal representation to pursue adversarial actions in bankruptcy court and prevent fraudulent debtors from using the Bankruptcy Code to evade lawful state judgments. Finally, we observe that our decision is consistent with the punitive damages at" }, { "docid": "10844647", "title": "", "text": "penalties that have previously been “contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case ...” and secondly, by subsection (a)(2)(B) which is specifically directed to situations involving a request for a refund of taxes previously paid. In this regard, § 505(a)(2)(B) precludes the bankruptcy court from determining the right of the estate to a tax refund before the expiration of 120 days after “the trustee properly requests such a refund” unless the pertinent governmental unit makes a decision upon the refund request prior to the lapse of 120 days. The purpose of § 505(a)(2)(B) is to afford the taxing authority a reasonable opportunity to review any refund claim under its normal administrative procedures. In re Maley, 152 B.R. 789, 793 (Bankr.W.D.N.Y.1992). The 120 day time frame was felt to be reasonable period of time to strike an appropriate balance between the needs of the taxing authorities and the need to promptly administer the bankruptcy estate. Id. Two general policies underlie § 505. .It allows the prompt resolution of a debtor’s tax liability, where that liability has not been determined prior to the bankruptcy proceeding, in the same forum addressing the debtor’s overall financial condition and it protects creditors from the dissipation of the estate’s assets which could result if the debt- or failed to challenge a prepetition assessment. See City Vending of Muskogee, Inc. v. Oklahoma Tax Commission, 898 F.2d 122, 124-25 (10th Cir.1990), cert. denied, 498 U.S. 823, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990). General unsecured creditors, not the debtor, are the intended beneficiaries of § 505(a). See Williams v. IRS (In re Williams), 190 B.R. 225, 227 (Bankr.W.D.Pa.1995). Considering these policies, however, one cannot ignore the distinctive treatment of tax refund claims imposed by section 505(a)(2)(B). In order to appreciate this distinction between determinations which involve the debtor’s tax liability per se and those involving the right of that debtor to seek a tax refund, a historical review of § 505 is helpful. Fortunately, Judge Queen-an aptly undertook a through review of the history of § 505(a)," }, { "docid": "11410913", "title": "", "text": "(4) the length of time required for trial and decision; (5) the asset and liability structure of debtors; and (6) the prejudice or potential prejudice to the debtor or the taxing authority. Starnes v. United States, supra at 750; In re AWB Associates, G.P., 144 B.R. 270, 276 (Bankr.E.D.Pa.1992). See also Shapiro v. I.R.S., supra at 143 (quoting In re Hunt, 95 B.R. 442, 445 (Bankr.N.D.Tex.1989)). This analysis also requires courts to consider whether policy reasons underlying section 505 would be served by such a review. Two policies underlie § 505’s grant of federal authority to determine state tax matters. First, § 505 allows the prompt resolution of a debtor’s tax liability, where that liability has not yet been determined prior to the bankruptcy proceeding, in the same forum addressing the debtor’s overall financial condition. See City of New York v. Fashion Wear Realty Co. (In re Fashion Wear Realty Co.), 14 B.R. 287, 290 (S.D.N.Y.1981); see also In re Stoecker, 179 F.3d 546, 549 (7th Cir.1999) (“If federal courts could not determine the debtor’s liability for state taxes— if they had to abstain pending a determination of that liability in state court— bankruptcy proceedings would be even more protracted than they are.”), aff'd sub nom. Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000). Secondly, § 505 protects “creditors from the dissipation of the estate’s assets which could result if the creditors were bound by a tax judgment which the debtor, due to his ailing financial condition, did not contest.” In re Northwest Beverage, Inc., 46 B.R. 631, 635 (Bankr.N.D.Ill.1985) citing In re Century Vault Co., supra. Were the Debtor’s County Taxes Contested and Adjudicated Prepetition? Again, the bankruptcy court will lack jurisdiction if the tax claim was both contested and adjudicated before this case was filed. The entire history of this assessment is not found in the record; however, some inference can safely be made. But to determine what inferences matter, a review of the Pennsylvania Real Estate Tax Sale Law is needed. For counties of the third class, such as" }, { "docid": "17620157", "title": "", "text": "connection with the case — (A) made a false oath or account[.]” The congressional purpose in enacting section 727(a)(4)(A) was to establish an “affirmative duty” for the chapter 7 debtor to completely disclose “all assets [and] liabilities and to answer all questions [pertaining to his/her financial affairs] fully and with the utmost candor.” In re Maletta, 159 B.R. 108, 112 (Bankr.D.Conn.1993); see generally In re Phillips, 476 Fed.Appx. 813 (11th Cir.2012). As recognized by one court, “[t]he purpose of [section 727(a)(4)(A)] is to allow creditors to have adequate information of the [debtor’s] estate without the need for an examination or investigation to determine if the statements are correct.” In re Hiegel, 117 B.R. 655, 659 (Bankr.D.Kan.1990); see In re Gudowitz, 1986 WL 28906, at *4; see also In re Haverland, 150 B.R. 768, 772 (Bankr.S.D.Cal.1993) (“A trustee or creditor should not be required to make a costly investigation ... to uncover the existence of property which the debtor knowingly fails to disclose.”). In other words, section 727(a)(4)(A) seeks to insure that the chapter 7 debtor has made full, honest and accurate disclosure of her financial circumstances so the bankruptcy trustee and creditors have sufficient information for the proper administration of the chapter 7 case without having to incur the time and expense of an investigation into her affairs. See In re Aubrey, 111 B.R. 268, 274 (9th Cir. BAP 1990) (“[T]he opportunity [for the debtor] to obtain a fresh start is thus conditioned upon truthful disclosure.”); In re Burnley, 1999 WL 717215, at *3 (Bankr.E.D.Pa. Aug. 27, 1999). Especially given the large numbers of bankruptcy filings each year, the bankruptcy process depends upon the complete and candid disclosure of assets, income, expenses and liabilities of the debtor. See generally Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988) (failure to disclose a claim in a bankruptcy case may judicially estop the debtor from later asserting that claim in other forum). Thus, it is understood that a debtor’s subsequent amendments to her schedules may rectify an honest mistake, but cannot expunge any fraud in the falsity of" }, { "docid": "21948809", "title": "", "text": "533.” In re Dinova, 212 B.R. at 441 (quoting In re Schwartz, 58 B.R. 923, 925 (Bankr. S.D.N.Y.1986)). This determination is guided by equitable considerations and committed to the sound discretion of the bankruptcy court. In re Foster, 316 B.R. 718, 720 (Bankr.W.D.Mo.2004). A debtor’s motion to dismiss has been denied where, for example, the debtor seeks to gain a tactical advantage in litigation to the detriment of a creditor and then to refile. See In re Hopkins, 261 B.R. 822, 823-24 (Bankr.E.D.Pa.2001). Dismissal was also denied where a debtor sought to dismiss and refile when certain tax liabilities would become dischargeable. See Leach v. I.R.S. (In re Leach), 130 B.R. 855, 856-58 (9th Cir. BAP 1991). Here, the record shows that the interests of the Debtor support the dismissal of this bankruptcy case. On the one hand, by dismissing her case, the Debtor will lose the opportunity to benefit from a discharge of her debt and the opportunity for a “fresh start”. But on the other, the Debtor has indicated that when she filed her bankruptcy petition, she did not fully understand the legal and practical consequences of commencing a bankruptcy case. She has also stated that if she had been able to make an informed decision, she would not have filed a bankruptcy petition. The Debtor has further stated that she no longer desires to pursue her case, that she is progressing on working out payment arrangements with her creditors, and that her personal situation and concern for her personal safety require her to relocate outside of this District. As a pro se debtor who had not previously sought bankruptcy relief, the Debtor did not have easy access to resources and advice about the consequences of commencing a Chapter 7 bankruptcy case. Concerns about her personal safety may also have overwhelmed her ability fully to address the issues associated with deciding to seek relief under the Bankruptcy Code. See In re Guth, 2002 WL 31941460, *7, 2002 Bankr.LEXIS 1553, *25 (Bankr.D.Id.2002) (the debtor’s sophistication and ability to appreciate what he or she was doing are relevant to whether" }, { "docid": "1121480", "title": "", "text": "provide a “fresh start” for the debtor. Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In a no-asset Chapter 7 case, like the one at hand, manipulation will surely result. The creditor, aware of a debtor’s precarious financial situation, will delay expenditures in anticipation of the debtor’s bankruptcy, thereby preventing discharge of the creditor’s claims. Additionally, debtors having attentive creditors will be denied the benefit of bankruptcy’s fresh start, although enjoyed by other debtors similarly situated but whose creditors are less well-informed. Such untenable results cannot be endorsed. DHS offers cases which hold private causes of action under CERCLA do not arise until cleanup costs are incurred. See Levin Metals Comp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1316 (9th Cir.1986); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437, 1450-1452 (S.D.Fla.1984). However, neither of these cases involved bankruptcy nor required determination of when a bankruptcy claim arises, but rather only determined that a private action under CERCLA could not be commenced prior to incurrence of cleanup costs. We conclude reliance on these cases is misplaced. Other cases cited by DHS and the bankruptcy court appear equally inapposite. In In re Hemingway Transport, Inc., 73 B.R. 494 (Bankr.D.Ma.1987), plaintiff in the adversary proceeding had purchased property from the bankruptcy trustee, property later determined to be contaminated with hazardous waste. The plaintiff was forced to clean up the waste and sought indemnification from the estate, specifically asserting administrative priority for its claim. While the court held plaintiff’s claims were entitled to administrative expense priority, the court cited cases holding that negligence of a trustee or receiver gives rise to administrative priority claims. Id. at 504-505. The court relied heavily on equitable considerations, evidenced by the following statement: Not only is the Court moved by the concept of fairness emphasized by the Supreme Court and the First Circuit Court of Appeals, it is moved by its awareness that [other courts have] frowned on the notion of a debtor attempting to transfer its liability or potential for liability under state or federal environmental laws. Id. at 505." }, { "docid": "18903735", "title": "", "text": "1992) (stating that a debtor must “provide a credi ble explanation” for failure to keep records); see also In re Wolfson, 152 B.R. 830, 832 (S.D.N.Y.1993); In re Folger, 149 B.R. 183, 188 (D.Kan.1992); In re Pulos, 168 B.R. 682, 690 (Bankr.D.Minn.1994); In re Sausser, 159 B.R. 352, 355-56 (Bankr.M.D.Fla.1993). We have already affirmed the bankruptcy court’s factual finding that the business records maintained by Ms. Cox were inadequate. In re Cox, 904 F.2d at 1402. Thus, 'the only issue in this case is whether Ms. Cox’s explanation that she relied upon her husband to keep records satisfied her burden of presenting evidence that she was justified in failing to maintain adequate records. We have previously held that “exceptions to dischargeability should be strictly construed in order to serve the Bankruptcy Act’s purpose of giving debtors a fresh start.” Matter of Kasler, 611 F.2d 308, 310 (9th Cir.1979) (citing Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915)); In re Bugna, 33 F.3d 1054,1059 (9th Cir.1994) (“The [Bankruptcy] Code is designed to afford debtors a fresh start, and we interpret liberally its provisions favoring debtors.”). The Supreme Court has recognized that while the “fresh start” is “a central purpose of the [Bankruptcy] Code,” this opportunity is limited to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); see In re Bugna, 33 F.3d at 1059; In re Britton, 950 F.2d 602, 606 (9th Cir.1991). Here, the bankruptcy court specifically found that Ms. Cox had no knowledge of her husband’s business affairs, did not participate in the transfer or removal of assets, and lacked an actual intent to hinder, delay or defraud a creditor or an officer of the estate. Cf. In re Lansford, 822 F.2d 902, 905 (9th Cir.1987) (refusing to base denial of wife’s discharge on strict agency or partnership principles, but finding wife was aware of and participated in her husband’s filing of false financial statement); Matter of Walker, 726 F.2d 452, 454 (8th Cir.1984) (holding that “more than the mere" }, { "docid": "14573135", "title": "", "text": "bankruptcy cases was intended to permit an honest debtor to obtain a fresh start from debt. The “central purpose of the [Bankruptcy] Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt....’” In re Sawyer, 130 B.R. 384, 392 (Bankr.E.D.N.Y.1991) (quoting Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). Such relief, however, is a privilege, not a right, and should only inure to the benefit of the “honest but unfortunate debtor.” Id.; In re Pimpinella, 133 B.R. 694, 697 (Bankr.E.D.N.Y.1991). Therefore, objections to discharge must be construed strictly against the objectant and liberally in favor of the debtor. In re Adlman, 541 F.2d 999, 1003 (2d Cir.1976); In re Kokoszka, 479 F.2d 990, 997 (2d Cir.1973), aff'd, Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), reh’g denied, 419 U.S. 886, 95 S.Ct. 160, 42 L.Ed.2d 131 (1974); In re Kelly, 135 B.R. 459, 461 (Bankr.S.D.N.Y.1992); In re Sapru, 127 B.R. 306, 314 (Bankr.E.D.N.Y.1991); In re Overmyer, 121 B.R. 272, 279 (Bankr.S.D.N.Y.1990). Section 727(a) of the Bankruptcy Code, however, provides various grounds for denying the discharge of an abusive or unworthy debtor. Pimpinella, 133 B.R. at 697; In re Shapiro, 59 B.R. 844, 847 (Bankr.E.D.N.Y.1986). Section 727(a)(3) exempts from discharge any debtor who has failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case. 11 U.S.C. § 727(a)(3). The fundamental policy underlying § 727(a)(3) is to insure that the trustee and the creditors receive sufficient information to effectively enable them “to trace the debtor's financial history, to ascertain the debtor’s financial condition, and to reconstruct the debtor’s business transactions.” In re Goldstein, 123 B.R. 514, 522 (Bankr.E.D.Pa.1991). See In re Cox, 904 F.2d" }, { "docid": "20964007", "title": "", "text": "out that the debtor had exercised her rights in challenging the tax claims but had failed to file the documents necessary to appeal the decision of the Tax Bureau in a timely fashion. Id. The court noted that “[w]hat the Debtor is requesting in this case is nothing more than an attempt to gain a second bite of the apple, which would only benefit her and not her creditors; a result never intended under Section 505.” Id., citing El Tropicano, 128 B.R. at 161. In the matter now before this Court, it is apparent that the Debtor’s only reason for filing its Petition was to stay the tax foreclosure of the Property by the City. Like the situation in Swan, there has been active involvement in the assessment review process concerning the Property. In fact, the parties have indicated that they anticipate a decision by the state court with respect to the years 1991, 1992, 1994, 1995/96 and 1996/97 in approximately eight weeks. Whether or not the Debtor will be able to reorganize will have to await the determination by the state court. This Court is of the opinion that adjudicating the 1993 tax assessment under these circumstances would not expedite any distribution to unsecured creditors, since there are none, and, therefore, would not advance the purposes for which Code § 505 was enacted. Based on the foregoing, it is hereby ORDERED that Debtor’s motion seeking review of the assessment of the Property for the 1993 tax year is denied; and it is further ORDERED that Debtor’s motion seeking review of the assessment of the Property for the 1994/95 tax year is also denied. . In addition to opposing Debtor’s motion, the City also filed a cross-motion seeking relief from the automatic stay pursuant to Code § 362(d)(3)(A) and (B). The cross-motion was heard on November 5, 1995, and adjourned to November 19, 1996, in order to allow the Debtor an opportunity to respond. Following oral argument on November 19, 1996, the matter was submitted for decision. By letter dated January 17, 1997, the City withdrew its cross-motion without prejudice." }, { "docid": "18796489", "title": "", "text": "property settlement. In an answer filed in an adversary proceeding, and in a hearing held to determine whether the case was a substantial abuse of the Bankruptcy Code, § 707(b), the debtor admitted that her primary purpose in filing a Chapter 7 petition was to discharge the debt to her ex-husband. We dismissed the debtor’s case as a substantial abuse, pursuant to § 707(b). By filing a Chapter 7 petition, then reaffirming or otherwise paying essentially all debts except those to her ex-husband, she was effectively filing a Chapter 7 as to him and a Chapter 13 as to her other creditors. We held such discriminatory treatment to be a substantial abuse of Chapter 7 and dismissed the case. It is equally abusive to attempt to manipulate Chapter 13 to file bankruptcy against only some of a debtor’s creditors. When debtors seek to take advantage of the benefits contained in the Bankruptcy Code, one of the conditions placed upon that relief — a “fresh start” — is that they must treat all their creditors fairly- In the instant case, the debtors’ plan fails to treat all similarly situated creditors equally, and thus is not proposed in good faith. Accordingly, confirmation of their plan must be denied. An order consistent with this opinion will be entered contemporaneously herewith. . Neither party briefed the issue. In fact, the objecting creditor failed to appear at the confirmation hearing to even argue its objection. The only legal argumentation was by the debtors’ oral presentation at the confirmation hearing. Technically, the objecting creditor may be deemed to have abandoned its objection. Notwithstanding that, however, the Court has an independent duty to determine whether the plan meets the standards for confirmation under 11 U.S.C. § 1325(a) and to deny confirmation when it appears not to comply therewith. In re Bowles, 48 B.R. 502, 505, 12 B.C.D. 1297, 1298 (Bankr.E.D.Va.1985). . Among the first courts to articulate these guidelines were those in the Western District of Michigan. See In re Blackwell, 5 B.R. 748 (Bankr.W.D.Mich.1980), and In re Kovich, 4 B.R. 403, 2 C.B.C.2d 203 (Bankr.W.D.Mich.1980). See" }, { "docid": "17577649", "title": "", "text": "9:40:10). 37. The Debtor exhausted the funds a few months after the § 341 Meeting of Creditors was held in her chapter 7 bankruptcy case. (N.T. 10:04:55). 38. The Debtor was aware of the confessed judgment against her and Circles when she withdrew the money from the segregated account. (N.T. 9:24:25). 39. The Debtor also was aware that her conduct would cause injury to the Plaintiffs property rights when she withdrew the money from the segregated account to use for her own benefit. IV. DISCHARGEABILITY UNDER 11 U.S.C. § 523 Generally speaking, the Bankruptcy Code seeks to promote two important policy interests: “to give the debtor a new financial start and to keep creditors on an equal playing field.” In re Calabrese, 689 F.3d 312, 320 (3d Cir.2012). To achieve the objective of a fresh start, the Bankruptcy Code provides debtors a discharge of their prepetition debts. Congress recognized, however, that the policy had to yield in some respects, to balance between the competing interests of debtors and creditors. The discharge is therefore, not absolute. The statutory exceptions to discharge are found in § 523(a). These exceptions are construed strictly against creditors and liberally in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Vidal, 2012 WL 3907847, *15 (Bankr.E.D.Pa. Sept. 7, 2012). A creditor objecting to the dischargeability of a debt bears the burden of proof. Cohn, 54 F.3d at 1113; In re Bittar, 2012 WL 1605160, *2 (Bankr.D.N.J. May 8, 2012). The creditor must establish the nondischargeability of the debt by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re August, 448 B.R. 331, 357 (Bankr.E.D.Pa.2011) (citations omitted). Section 523(a)(6) specifically excepts from discharge any debt for \"willful and malicious injury by the debtor to another entity or to the property of another entity.\" 11 U.S.C. § 523(a)(6). To invoke the 523(a)(6) exception, the creditor must prove not only that injury has resulted, but also that the debtor's conduct was both \"willful\" and \"malicious.\" E.g., In re Vepun, 2009 WL" }, { "docid": "10844648", "title": "", "text": "prompt resolution of a debtor’s tax liability, where that liability has not been determined prior to the bankruptcy proceeding, in the same forum addressing the debtor’s overall financial condition and it protects creditors from the dissipation of the estate’s assets which could result if the debt- or failed to challenge a prepetition assessment. See City Vending of Muskogee, Inc. v. Oklahoma Tax Commission, 898 F.2d 122, 124-25 (10th Cir.1990), cert. denied, 498 U.S. 823, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990). General unsecured creditors, not the debtor, are the intended beneficiaries of § 505(a). See Williams v. IRS (In re Williams), 190 B.R. 225, 227 (Bankr.W.D.Pa.1995). Considering these policies, however, one cannot ignore the distinctive treatment of tax refund claims imposed by section 505(a)(2)(B). In order to appreciate this distinction between determinations which involve the debtor’s tax liability per se and those involving the right of that debtor to seek a tax refund, a historical review of § 505 is helpful. Fortunately, Judge Queen-an aptly undertook a through review of the history of § 505(a), including its immediate predecessor on taxes contained in the prior Bankruptcy Act, in the recent case of Cumberland Farms, Inc. v. Town of Barnstable (In re Cumberland Farms, Inc.), 175 B.R. 138 (Bankr.D.Mass.1994). Section 2a(2A) of the prior Act had much clearer language concerning refund rights. It gave the bankruptcy court jurisdiction to: (2A) Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction, and in respect to any tax, whether or not paid, when any such question has been contested and adjudicated by a judicial or administrative tribunal of competent jurisdiction and the time for appeal or review had not expired, to authorize the receiver or trustee to prosecute such appeal or review. [Emphasis supplied] [fn. 11 U.S.C. § 2a(2A) (repealed 1978) ]. The prior statute’s unrestricted grant of jurisdiction was expressly limited to adjudication of" }, { "docid": "20964006", "title": "", "text": "omitted). There is nothing terribly complex about determining the valuation of the Property for assessment purposes. Indeed, this Court made similar determinations in both 4.9 9 W. Warren Street and Tippp Hill Associates. Furthermore, any burden on the Court’s docket and the length of time necessary to conduct the hearing would be minimal. It is the asset and liability structure of the Debtor which concerns the Court. Not only is the Debtor a single asset real estate case, it also has only a single creditor, the City of Syracuse. There are no unsecured creditors awaiting distribution by the Debtor. Under similar circumstances, the courts generally have abstained from reviewing tax disputes. See In re Shapiro, 188 B.R. 140, 144 (Bankr.E.D.Pa.1995) (citations omitted). For example, in In re Swan, 152 B.R. 28 (Bankr.W.D.N.Y.1992), the debtor’s only creditors were the mortgage holders on her residence and the taxing authorities, including the Internal Revenue Service. The bankruptcy court, citing to El Tropicano, declined to exercise its discretion under Code § 505. See id. at 30. The court pointed out that the debtor had exercised her rights in challenging the tax claims but had failed to file the documents necessary to appeal the decision of the Tax Bureau in a timely fashion. Id. The court noted that “[w]hat the Debtor is requesting in this case is nothing more than an attempt to gain a second bite of the apple, which would only benefit her and not her creditors; a result never intended under Section 505.” Id., citing El Tropicano, 128 B.R. at 161. In the matter now before this Court, it is apparent that the Debtor’s only reason for filing its Petition was to stay the tax foreclosure of the Property by the City. Like the situation in Swan, there has been active involvement in the assessment review process concerning the Property. In fact, the parties have indicated that they anticipate a decision by the state court with respect to the years 1991, 1992, 1994, 1995/96 and 1996/97 in approximately eight weeks. Whether or not the Debtor will be able to reorganize will have" }, { "docid": "10178820", "title": "", "text": "benefit from a determination in the Debtor’s favor. “When the intended beneficiaries of the remedy in question will realize no particular benefit from its use, much of the rationale for its employment disappears, and with it this Court’s willingness to exercise discretion afforded by the statute.” Tropicano, 128 B.R. at 161. This Court agrees with Bankruptcy Judge Leif M. Clark’s reasoning in Tropicano that discretion should not be exercised where the unsecured creditors derive no benefit from the remedy under Section 505. The Debtor in this case was not one who was not always vigilant in the exercise of her rights to 'challenge tax claims or inept, incompetent, uninterested, or dishonest where § 505 may be exercised but had professional accountants working with her to amend previously filed and incorrectly prepared returns. See City of Amarillo v. Eakens, 399 F.2d 541, 441 (5th Cir.1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969). The problem was that the required documentation was not properly filed within the applicable statute of limitations period in a manner which would overcome the presumptions set forth in Section 7502. What the Debtor is requesting in this case is nothing more than an attempt to gain a second bite of the apple, which would only benefit her and not her creditors; a result never intended under Section 505. See Tropicano, 128 B.R. at 161. On the facts and circumstances of this case the Court will not exercise its equitable discretion under Section 505 to determine the 1984 taxes due from the Debtor to the IRS as if an 1040X amended return was properly and timely filed. The Debtor’s objection to the claim of the IRS is denied and its claim is allowed. IT IS SO ORDERED. . Section 505 provides: § 505. Determination of tax liability. (a)(1) Except as provided in paragraph (2) of this subsection, the court may determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not" }, { "docid": "6927363", "title": "", "text": "Complaint pursuant to § 727(a)(2)(A) and is seeking the denial of Rose’s Chapter 7 discharge. Generally, an individual debtor in a Chapter 7 case may receive a discharge from his personal liability for all debts that had existed at the time of filing. Kontrick v. Ryan, 540 U.S. 443, 447, 124 S.Ct. 906, 910-911, 157 L.Ed.2d 867 (2004). Section 727(a)(2) allows for a denial of that discharge when: the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A)property of the debtor, within one year before the date of the filing of the petition; or ... (emphasis added) The party seeking the denial of a debtor’s discharge must demonstrate that denial is appropriate by a preponderance of the evidence. In re Zimmerman, 320 B.R. 800, 806 (Bankr.M.D.Pa.2005) (citing Grogan v. Garner, 498 U.S. 279, 289-90, 111 S.Ct. 654, 660, 112 L.Ed.2d 755 (1991)). The party seeking denial of discharge must show that the debtor “(1) transferred or concealed property; (2) belonging to him; (3) within one year of the bankruptcy filing or after the petition was filed; and (4) with intent to hinder, delay, or defraud a creditor.” In re DiLoreto, 266 Fed.Appx. 140, 144 (3d Cir.2008) (citing In re Dawley, 312 B.R. 765, 782 (Bankr.E.D.Pa.2004)). The Third Circuit has noted that the purpose of the Bankruptcy Code is to provide debtors with a fresh start by relieving them from oppressive indebtedness. In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995). However, the benefit of a “fresh start” is limited to the “honest but unfortunate debtor.” In re Cohen, 106 F.3d 52, 59 (3d Cir.1997) (citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659-660, 112 L.Ed.2d 755 (1991)). Nonetheless, the Third Circuit has also counseled that “[t]he section is to be construed liberally in favor of the debtor.... Completely denying a debtor his discharge, as opposed to avoiding a transfer or declining to discharge" }, { "docid": "20964005", "title": "", "text": "B.R. 756, 760 (Bankr.S.D.N.Y.1995). Therefore, it is encumbent upon the Court to assure itself that the legislative purpose for drafting this provision, namely to protect the interests of both debtors and creditors, see id., is met. Creditors are entitled to protection from the “dissipation of an estate’s assets” in the event that the debtor failed to contest the legality and amount of taxes assessed against it. Id. Having the bankruptcy court adjudicate the matter also may afford an alternative forum for proceedings that might otherwise delay the orderly administration of the case and distribution to the debtor’s creditors. The courts generally consider a number of factors, including the complexity of the tax issue, the need to administer the bankruptcy case in an expeditious fashion, the burden on the bankruptcy court’s docket, the length of time necessary to conduct the hearing and to render a decision thereafter, the asset and liability structure of the debtor and the potential prejudice to the debtor and the taxing authority. See In re D’Alessio, 181 B.R. 756, 759-60 (Bankr.S.D.N.Y.1995) (citations omitted). There is nothing terribly complex about determining the valuation of the Property for assessment purposes. Indeed, this Court made similar determinations in both 4.9 9 W. Warren Street and Tippp Hill Associates. Furthermore, any burden on the Court’s docket and the length of time necessary to conduct the hearing would be minimal. It is the asset and liability structure of the Debtor which concerns the Court. Not only is the Debtor a single asset real estate case, it also has only a single creditor, the City of Syracuse. There are no unsecured creditors awaiting distribution by the Debtor. Under similar circumstances, the courts generally have abstained from reviewing tax disputes. See In re Shapiro, 188 B.R. 140, 144 (Bankr.E.D.Pa.1995) (citations omitted). For example, in In re Swan, 152 B.R. 28 (Bankr.W.D.N.Y.1992), the debtor’s only creditors were the mortgage holders on her residence and the taxing authorities, including the Internal Revenue Service. The bankruptcy court, citing to El Tropicano, declined to exercise its discretion under Code § 505. See id. at 30. The court pointed" }, { "docid": "4357821", "title": "", "text": "of bankruptcy law that exemptions are determined when a petition is filed. In re Friedman, 38 B.R. 275, 276 (Bankr.E.D.Pa.1984) (“It is hornbook bankruptcy law that a debtor’s exemptions are determined as of the time of the filing of his petition.”); see also Cunningham, 354 B.R. at 553. To interpret § 522(c) as conferring merely an ephemeral exemption, subject to post-termination events, would undermine that basic principle and its relationship to the fresh start policy of the Bankruptcy Code. The Supreme Court has stated that “a central purpose of the Bankruptcy Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). The Bankruptcy Code facilitates a fresh start, in part, by allowing property properly exempted under § 522 to be immunized against liability for pre-petition debts. See Owen, 500 U.S. at 309, 111 S.Ct. 1833. The efficacy of the fresh 'start policy requires finality that allows a debtor to rebuild his life without fear of lingering creditors. \"In In re Reed, a Texas debtor sold his homestead, which he had taken as an exemption pursuant to the state exemption list, during the pendency of the bankruptcy proceedings. 184 B.R. 733 (Bankr.W.D.Tex.1995). The trustee for the bankruptcy estate argued that the post-petition sale of the exempt homestead property made the proceeds available to satisfy pre-petition debt. The bankruptcy court disagreed. Id. at 738-39. If “estates could be reopened to administer such proceeds at virtually any time, [the reopening would be] robbing bankruptcy administration of any sort of meaningful finality, and robbing bankruptcy discharge of its efficacy.” Id. at 738. Pasquina argues that the fresh start and finality interests are inapplicable in this case because Cunningham is a dishonest debtor unworthy of the Bankruptcy Code’s protection. It is" }, { "docid": "16062433", "title": "", "text": "amount of the tax that purportedly is due and owing. Requiring her to proceed in the district court, she concludes, effectively would deprive her of the opportunity to contest the tax liability because she lacks the wherewithal to pay such a tax. The circumstances present in this ease persuade us that abstention is warranted. General unsecured creditors, not the debtor, are the intended beneficiaries of § 505(a). See In re El Tropicano Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). Bankruptcy courts uniformly have refused to exercise jurisdiction in § 505(a) actions when it is obvious that the intended beneficiaries unquestionably will derive no benefit from the outcome of the case. See, e.g., In re Swan, supra; In re Millsaps, 133 B.R. 547, 554 (Bankr.M.D.Fla.), aff'd, 138 B.R. 87 (M.D.Fla.1991); In re Cain, 142 B.R. 785, 789 (Bankr.W.D.Tex.1992). As was noted previously, debtor has only one general unsecured creditor to which she owes $232.28. This creditor will not benefit from the outcome of this case because debtor has reaffirmed her obligation to it and has agreed to pay the creditor in full in installments. Moreover, this is a no-asset case. Abstention is especially appropriate in such cases. See, e.g., In re Kaufman, 115 B.R. 378, 379 (S.D.Fla.1990). Hearing and deciding this ease will not further any bankruptcy interest. No assets will be made available for distribution to creditors if debtor prevails. Conversely, no assets will be available to satisfy the debt owed to IRS should it prevail. Creditors will receive no distribution from the estate under either scenario. See In re Queen, 148 B.R. 256, 259 (S.D.W.Va.1992), aff'd, 16 F.3d 411 (4th Cir.1994). Debtor will be the only beneficiary if she prevails in this adversary action. One of the primary purposes of § 505(a) is to avoid delays in the administration of the bankruptcy estate by providing a forum where certain tax liability disputes may be decided expeditiously. See In re Diez, 45 B.R. 137, 139 (Bankr.S.D.Fla.1989). Congress did not intend for a bankruptcy court to provide a forum for such litigation when the outcome of the case will have no impact" }, { "docid": "16062432", "title": "", "text": "under appropriate circumstances. IRS argues that we should abstain because the outcome of this case will have no effect whatsoever upon administration of the bankruptcy estate as this is a no-asset case. Abstention, it asserts, will not deprive debtor of all opportunity to litigate this dispute. Other administrative and judicial forums wherein debtor may contest her tax liability are available. Debtor concedes that this is a no-asset case and that the outcome of this case will not result in any distribution either to IRS or to any other creditor. She nonetheless insists that we should not abstain because the issues in this case are neither difficult nor complex; because a lengthy period of time would not be needed to try the case; and because she would suffer “extreme prejudice” if we abstained. Her only opportunity to contest the tax liability other than in this court, debtor insists, would be in federal district court, where she could seek a refund. Before she can do this, however, debtor avers that she will have to pay the entire amount of the tax that purportedly is due and owing. Requiring her to proceed in the district court, she concludes, effectively would deprive her of the opportunity to contest the tax liability because she lacks the wherewithal to pay such a tax. The circumstances present in this ease persuade us that abstention is warranted. General unsecured creditors, not the debtor, are the intended beneficiaries of § 505(a). See In re El Tropicano Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). Bankruptcy courts uniformly have refused to exercise jurisdiction in § 505(a) actions when it is obvious that the intended beneficiaries unquestionably will derive no benefit from the outcome of the case. See, e.g., In re Swan, supra; In re Millsaps, 133 B.R. 547, 554 (Bankr.M.D.Fla.), aff'd, 138 B.R. 87 (M.D.Fla.1991); In re Cain, 142 B.R. 785, 789 (Bankr.W.D.Tex.1992). As was noted previously, debtor has only one general unsecured creditor to which she owes $232.28. This creditor will not benefit from the outcome of this case because debtor has reaffirmed her obligation to it and has agreed to" }, { "docid": "11410912", "title": "", "text": "921, 925 (3d Cir.1990) citing S.Rep. No. 989, 95th Cong., 2d Sess. 67, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5853; see also In re Century Vault Company, 416 F.2d 1035, 1041 (3d Cir.1969) (Bankruptcy Act § 2a(2A) — predecessor to Code § 550 — allowed trustee to review tax claim after time had run against the debt- or for such a challenge). The authority under section 505(a) to determine the amount or legality of a tax is discretionary. See Shapiro v. I.R.S., 188 B.R. 140, 143 (Bankr.E.D.Pa.1995); In re Mall at One Associates, L.P., 185 B.R. 1009, 1016. It “may or may not be exercised depending upon the equities of the particular situation.” Starnes v. United States, 159 B.R. 748, 750 (Bankr.W.D.N.C.1993). In determining whether to undertake a section 505(a) review, a number of factors are considered relevant, including the following: (1) the complexity of the tax issue to be decided; (2) the need to administer the bankruptcy case in an orderly and efficient manner; (3) the burden on the bankruptcy court’s docket; (4) the length of time required for trial and decision; (5) the asset and liability structure of debtors; and (6) the prejudice or potential prejudice to the debtor or the taxing authority. Starnes v. United States, supra at 750; In re AWB Associates, G.P., 144 B.R. 270, 276 (Bankr.E.D.Pa.1992). See also Shapiro v. I.R.S., supra at 143 (quoting In re Hunt, 95 B.R. 442, 445 (Bankr.N.D.Tex.1989)). This analysis also requires courts to consider whether policy reasons underlying section 505 would be served by such a review. Two policies underlie § 505’s grant of federal authority to determine state tax matters. First, § 505 allows the prompt resolution of a debtor’s tax liability, where that liability has not yet been determined prior to the bankruptcy proceeding, in the same forum addressing the debtor’s overall financial condition. See City of New York v. Fashion Wear Realty Co. (In re Fashion Wear Realty Co.), 14 B.R. 287, 290 (S.D.N.Y.1981); see also In re Stoecker, 179 F.3d 546, 549 (7th Cir.1999) (“If federal courts could not determine the debtor’s" } ]

[ { "docid": "22650012", "title": "", "text": "Justice Brennan delivered the opinion of the Court. Pro se prisoners can file notices of appeal to the federal courts of appeals only by delivering them to prison authorities for forwarding to the appropriate district court. The question we decide in this case is whether under Federal Rule of Appellate Procedure 4(a)(1) such notices are to be considered filed at the moment of delivery to prison authorities for forwarding or at some later point in time. I Incarcerated in a Tennessee prison, petitioner Prentiss Houston filed a pro se petition under 28 U. S. C. § 2254 for a writ of habeas corpus in Federal District Court in Tennessee. That court declined to appoint counsel and entered judgment dismissing the habeas petition on January 7, 1986. Still acting pro se, petitioner drafted a notice of appeal and, on February 3, 1986 (27 days after the judgment), deposited it with the prison authorities for mailing to the District Court. This date of deposit was recorded in the prison log of outgoing mail. Petitioner also states without contradiction that he requested the prison to certify his notice for proof that it had been deposited for mailing on that date and requested that the notice be sent air mail, but that the prison refused these requests because he lacked funds to pay the fees the prison charged for such services. The record does not contain the envelope in which the notice of appeal was mailed, and therefore does not contain the postmark or any other evidence of when the.prison authorities actually mailed the letter. The prison log, however, suggests that in addressing the notice the petitioner may have mistakenly used the post office box number of the Tennessee Supreme Court rather than that of the Federal District Court (both of which are in Jackson, Tennessee, approximately 81 miles from the prison). Although there is no direct evidence of the date on which the District Court received the notice, the notice was stamped “filed” by the Clerk of the District Court at 8:30 a.m. on February 7, 1986, 31 days after the District Court’s" } ]

[ { "docid": "12304640", "title": "", "text": "parties ten days after “being served with a copy” of the R & R to “serve and file written objections” thereto. Assuming the clerk of the district court mailed the R & R to plaintiff on the date it was filed, three provisions of the federal rules of civil procedure come into play. First, three days are added to the ten day period to cover the time for mailing. Fed.R.Civ.P. 6(e). Second, service is complete upon mailing. Id. 5(b). Finally, under Rule 6(a), as it read prior to its most recent amendment in August 1985, computations of time periods exceeding seven days do not exclude intervening weekends or holidays. In other words, plaintiff had thirteen calendar days from June 29, 1984, to “serve and file” written objections to the R & R. This circuit has held that failure to object timely to a magistrate’s R & R where the party is properly notified of the time limit constitutes waiver of that party’s right to appeal from the district court’s entry of judgment in accord with the R & R. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The Walters rule was recently upheld in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). It is a procedural rule made pursuant to the court’s supervisory powers. It plainly is not a jurisdictional rule; the court of appeals retains subject matter jurisdiction over the appeal regardless of the untimely filing or nonfiling of objections. Id. at 470. In Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir.1983), this court concluded that when written objections to a magistrate’s report are tendered beyond the 10 day period of 28 U.S.C. § 636(b)(1), but are nevertheless filed and considered by the district court, the criteria identified in Walters in justification of the waiver rule promulgated therein dissipate and the rule will not apply to bar appellate review. Likewise, the Supreme Court in Thomas v. Arn “emphasize[d] that, because the [ Walters ] rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interest" }, { "docid": "18834768", "title": "", "text": "states that when a matter is referred to a magistrate for a report and recommendation under 28 U.S.C. § 636(b)(1)(B), as was done in this case: the magistrate shall file his proposed findings and recommendations under sub-paragraph (B) with the court and a copy shall forthwith be mailed to all parties. 28 U.S.C. § 636(b)(1)(C) (emphasis added). The act then proceeds to declare that: Within ten days after being served with a copy, any party may serve and file writ ten objections to such proposed findings and recommendations as provided by rules of court. 28 U.S.C. § 636(b)(1) (emphasis added). It seems clear to the court that the Magistrate’s Act plainly envisions mailing of the magistrate’s report to the parties and that the ten day time limitation for filing objections runs from the date of service of a copy of the report. The date of service would be the date the report was actually received by the party or his attorney. Here that date is August 15, 1980. A reading of the case cited by counsel for plaintiff shows that the date of actual receipt is operative. See, Webb v. Califano, 468 F.Supp. 825 (E.D.Cal. 1979) (Magistrate filed report on August 1, 1978 but copies of report served on parties August 4,1978 and time began to run from August 4th date). In addition, section 636(b)(1) states that the filing of objections should be “as provided by rules of court.” Fed.R.Civ.P. 6(e) states: Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. Therefore, the operative period for computing the ten day time period is within thirteen days after the receipt of the magistrate’s report. See, Webb v. Califano, supra (objections to magistrate’s report were not timely filed even after addition of three days under Rule 6(e) to ten day period running from receipt of report). Fed.R. Civ.P. 6(a)" }, { "docid": "4255056", "title": "", "text": "MEMORANDUM AND ORDER DENYING DEFENDANT’S OBJECTIONS TO THE ORDER OF THE MAGISTRATE GENE CARTER, Chief Judge. Defendant has filed objections to an order of attachment issued by the Magistrate after hearing. Plaintiff has moved to strike the objections as untimely filed and in the alternative opposes Defendants’ objections. The Court hereby denies both Plaintiff’s motion to strike and Defendant’s 'objections to the Magistrate’s order. Motion to Strike The Magistrate’s Order was signed, filed, and entered on the docket on February 14, 1990. On March 5, 1990, Defendant filed its notice of appeal of the order under Fed.R.Civ.P. 72(a). The Magistrates Act does not set specific procedures or timetables for objections to a Magistrate’s orders on nondispositive matters. 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P. 72, Notes of Advisory Committee on Rules, Subdivision (a). Rule 72(a), which governs procedure before the Magistrate concerning nondispositive matters, provides, however, that “[t]he district judge to whom the case is assigned shall consider objections made by the parties, provided they are served and filed within 10 days after the entry of the order.” Excluding intervening weekends and holidays in accordance with Fed.R.Civ.P. 6(a), ten days after the February 14 entry of the Magistrate’s order in this case was March 1, 1990, and Defendant should have filed its objection on that date. Defendant argues that Fed.R. Civ.P. 6(e) applies to Rule 72(a) to extend the filing time by three days to allow for service by mail and that its Monday, March 5 filing was therefore timely. Rule 6(e), however, adds three days only when a party is required to do some act within a prescribed period after the service of a notice or other paper upon the party. Rule 72(a) explicitly requires objections to non-dispositive motions to be filed ten days after entry of the order. Rule 6(e), therefore, does not apply to objections raised under Fed.R.Civ.P. 72(a). National Savings Bank v. Jefferson Bank, 127 F.R.D. 218 (S.D.Fla.1989); Bolger Publications, Inc. v. Graphic Communications International Union Local 229, 601 F.Supp. 207 (D.Minn.1985). The Court in this case, however, will entertain Defendant’s objections. The record shows that" }, { "docid": "1174345", "title": "", "text": "stay or dismiss this action because of the pending state action should be DENIED. 2. Defendant’s motion to dismiss Counts One, Two, and Three for failure to state a claim should be DENIED as well. 3. Defendant’s motion to dismiss plaintiffs claims for punitive damages under Counts One, Two, and Three for failure to state a claim should be GRANTED. 4. Defendant’s motion to dismiss Count Four for failing to state fraud with particularity should be GRANTED also. 5. Defendant’s motion to dismiss any claim for pre-1987 damages under Count Three as time barred should be DENIED. 6. Defendant’s motion to dismiss Counts One and Two as time barred should be DENIED as well. 7. Defendant’s motion to dismiss Count Three on grounds of ratification should be DENIED. 8. Finally, defendant’s motion to dismiss the entire action based on want of diversity jurisdiction, due to plaintiff’s failure to meet the amount in controversy, should be DENIED. V. Review Procedure By copy of this Report and Recommendation, the parties are notified that pursuant to 28 U.S.C. § 636(b)(1)(C): 1. Any party may serve upon the other party and file with the Clerk written objections to the foregoing findings and recommendations within ten (10) days from the date of mailing of this report to the objecting party (see 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)) computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure, plus three (3) days permitted by Rule 6(e). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. 2. A district judge shall make a de novo determination of those portions of this report or specified findings or recommendations to which objection is made. The parties are further notified that failure to file timely objections to the findings and recommendations set forth above will result in waiver of right to appeal from a judgment of this Court based on such findings and recommendations. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Carr v. Hutto, 737 F.2d 433 (4th Cir.1984), cert. denied, 474" }, { "docid": "23696862", "title": "", "text": "the district court’s order, plaintiff filed both a response to the motion for summary judgment and written objections to the magistrate judge’s report and recommendation. The response was filed on June 25, 1993, and the written objections on March 4, 1994. The response and the written objections may have been untimely filed. The response was due on June 18,1993, and the written objections on March 3, 1994. Under Fed.R.Civ.P. 56(c) and (e), the adverse party is to “serve” a response to the motion for summary judgment by affidavits or otherwise. Under Fed.R.Civ.P. 72(b), a party is to “serve” and file specific written objections to the proposed findings and recommendations of a magistrate judge. “Service” may be accomplished by mail, and “[sjervice by mail is complete upon mailing.” Fed.R.Civ.P. 5(b). The addition of 3 days for service by mail pursuant to Fed.R.Civ.P. 6(e) would arguably make the written objections timely but not the response to the motion for summary judgment. However, both the response and the written objections would be timely filed under the rule announced in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), in which the Supreme Court held as timely filed a pro se notice of appeal in a habeas case deposited by an inmate with prison authorities for mailing within the 30-day period fixed by Fed.R.App.P. 4(a) for the filing of a notice of appeal. See Fed. R.App.P. 4(c) (amendment of rule to reflect decision in Houston v. Lack). We need not decide whether to extend the rule in Houston v. Lack to filings other than notices of appeal because, even if the rule were not extended here, the district court should reconsider whether the dismissal with prejudice for failure to prosecute should stand in light of the evidence plaintiff has presented. If we extended the rule in Houston v. Lack to all pro se prisoner filings in § 1983 actions or to written objections to magistrate judges’ reports and recommendations, then plaintiffs response and written objections were not untimely filed because, as plaintiff explained, he deposited the response in the prison" }, { "docid": "3321349", "title": "", "text": "will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994). III. ANALYSIS A. Plaintiffs Objections 1. Timeliness & Specificity As a threshold matter, the Federal Defendants argue that Plaintiffs objections, which were filed on May 18, 2009, were not timely. (See Doc. # 91 at 2.) The Magistrate Judge’s recommendation is dated April 30, 2009. Objections are due “[w]ithin 10 days after being served with a copy of the” recommendation. Fed.R.Civ.P. 72(b)(2). Where, as here, the time period at issue is less than 11 days, intermediate weekend days are to be excluded from the calculation. Fed.R.Civ.P. 6(a)(2). Moreover, because Plaintiff was served by mail, an additional three days are added to the end of the period. Fed.R.Civ.P. 6(d); see also Fed.R.Civ.P. 72 advisory committee’s notes, 1983 addition (noting that the 10-day period for filing objections is subject to the additional three-day period under Rule 6). In calculating the three-day addition, “[i]ntermediate Saturdays, Sundays, and legal holidays are included.” Fed. R.Civ.P. 6 advisory committee’s notes, 2005 Amendments. However, “[i]f the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday.” Id. Under these rules, Plaintiffs ten-day period (exclusive of weekends) expired on Thursday, May 14. Adding three days (and counting the weekend days), the objections came due on Sunday, May 17. But because the last day to act cannot fall on a Sunday, that due date rolled over to Monday, May 18. As such, the objections were timely. However, Plaintiffs objections present another problem — lack of specificity. Much of Plaintiffs brief is devoted either to rearguing his substantive claims of improper conduct by the courts in his earlier cases or to broad attacks on the character and integrity of courts and judges. The Magistrate Judge’s recommendation rests on procedural and jurisdictional grounds; whatever the merits of" }, { "docid": "18834767", "title": "", "text": "ORDER DENYING MOTION TO STRIKE HORTON, District Judge. Plaintiff’s petition for a writ of habeas corpus was filed in this court and referred to the United States Magistrate for a report and recommendation. The report was filed on August 11, 1980 and docketed by the Clerk of the Court on August 12, 1980. Plaintiff’s Memphis attorney filed his objections to the report with the Clerk of the Court on August 18,1980 and mailed a copy of the objections to the Nashville attorney for the defendant on that date. Defendant’s Nashville counsel received the Magistrate’s Report from the Clerk of the Western District on August 15, 1980. On August 26, 1980 the defendant mailed his objections to the Magistrate’s report both to opposing counsel and to the Clerk of the Court. On August 28, 1980, the Clerk stamped the objections filed. Plaintiff has now filed a motion to strike the defendant’s objections to the Magistrate’s report and alleges that they are untimely filed and thus are a nullity. The court denies the motion. The Magistrate’s Act states that when a matter is referred to a magistrate for a report and recommendation under 28 U.S.C. § 636(b)(1)(B), as was done in this case: the magistrate shall file his proposed findings and recommendations under sub-paragraph (B) with the court and a copy shall forthwith be mailed to all parties. 28 U.S.C. § 636(b)(1)(C) (emphasis added). The act then proceeds to declare that: Within ten days after being served with a copy, any party may serve and file writ ten objections to such proposed findings and recommendations as provided by rules of court. 28 U.S.C. § 636(b)(1) (emphasis added). It seems clear to the court that the Magistrate’s Act plainly envisions mailing of the magistrate’s report to the parties and that the ten day time limitation for filing objections runs from the date of service of a copy of the report. The date of service would be the date the report was actually received by the party or his attorney. Here that date is August 15, 1980. A reading of the case cited by" }, { "docid": "7678753", "title": "", "text": "period should be computed, as it otherwise would be, from the point of presumed receipt. Thus, the length of the party’s ten day response period should be computed, applying the less-than-eleven-day provision of Rule 6(a), separately from the three day period allowed by Rule 6(e). The mailing rule should provide three extra days, in addition to whatever period the party would otherwise have, to reflect the presumed lapse in notice because of service by mail. For the foregoing reasons, the Court holds that response periods to magistrates’ recommendations should be computed by first applying the less-than-eleven-day provision of Rule 6(a) to the ten day time period prescribed by Rule 72(b), thereby excluding any intervening Saturdays, Sundays, and legal holidays. The date of service shall be the date on which the Clerk of Court mails out the magistrate’s recommendation. See 7 J. Moore, supra, II72.04[9. — 2]; see also Fed.R.Civ.P. 5(b) (“Service by mail is complete upon mailing.”). After establishing an initial response date by this method, three additional days should be added pursuant to Rule 6(e). If the final day should fall on a weekend or legal holiday, the objections would be due on the first official business day thereafter. This procedure will result in a response period of at least seventeen days, with additional days if any legal holidays fall within the period. Should this time period result in excessive delay in urgent cases, the parties can always request the court to shorten the response time. See Fed.R. Civ.P. 6 advisory committee note (1984 amendment); see also United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978) (10-day period provided by 28 U.S.C. § 636(b)(1) to file objections to magistrates’ recommendations is a maximum, not a minimum; court may require a shorter period). In the case at bar, the Recommendation of the Magistrate was mailed, and therefore served, by the Clerk on Monday, January 5, 1987. Applying the method of computation described above, the objections to the recommendation were due to be filed no later than Friday, January 23, 1987. (Monday, January 19, 1987 was a legal holiday, the" }, { "docid": "23652613", "title": "", "text": "Quaker Oats Co., 84 F.3d 239, 241-42 (7th Cir.1996), we clearly set out the method for calculating the date Kruger’s objections to the magistrate judge’s recommendation were due, both parties and the district court failed to use the Lerro method. In this case, the magistrate judge mailed his recommendation to the parties on October 15. Under Rule 72, a party has 10 days after service to file objections. Lerro, 84 F.3d at 241-42. Rule 6(a) excludes Saturdays, Sundays and legal holidays from the 10-day count. Id. at 242. Rule 72 also requires a magistrate judge to serve his recommendations on the parties, and, because in this case the magistrate judge did so by mail, Kruger had an additional three calendar days to file his objections as provided in Rule 6(e). Id. Here, because there were two weekends in the relevant 10-day period, 10 days plus three days turned into 17 calendar days. Id. In addition, because the 17th day fell on a Sunday, Rule 6(a) permitted Kruger to file his objections the next day on November 2. Id. Thus, Kruger missed the deadline by one day, filing his objections on November 3. The district court recognized that Kruger’s objections had merit, but concluded that, because they were not timely filed, it did not have to consider them or review the magistrate judge’s recommendation before adopting it. But, as Kruger points out, the 10-day deadline is not juris dictional; thus, the district court was not barred from considering the late objections. See Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994). In reaching its decision, the district court overlooked the fact that we declined “to extend our rule barring appeal when objections to the magistrate judge’s recommendation are not filed with the district judge to a case in which the filing was not egregiously late and caused not even the slightest prejudice to the appellees.” Hunger, 15 F.3d at 668. In Hunger we concluded that objections filed three weeks after the magistrate issued his recommendation were not egregiously late. By comparison, Kruger filed his objections only a day late. Moreover," }, { "docid": "1780687", "title": "", "text": "was sexually harassed by the Seabrook defendants. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Sidney H. Stein, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Stein. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). . By letter dated July 2, 2009 the Seabrook defendants asserted that plaintiffs objections to the Report and Recommendation were untimely and requested the Court disregard them as a result. That request can be readily rejected because it is premised on a miscalculation of the time given plaintiff by the Federal Rules to respond to the Report. Fed. R.Civ.P. 72(b) provides that a party must object “within 10 days after being served with a copy of the recommended disposition.” However, Rule 6, which governs the computation of time under the Federal Rules, directs the Court is to “[ejxclude the day of the act, event, or default that begins the period,” and, \"when the period is less than 11 days,” to \"[ejxclude intermediate Saturdays, Sundays, and legal holidays.” Fed.R.Civ.P. 6(a)(l)-(2). Here, Scott was served the Report on June 16, 2009. Her ten-day window in which to respond, thus, began June 17, 2009, and, excluding \"intermediate Saturdays, Sundays, and legal holidays,” ran through the end of the day on June 30, 2009, the very date on which Scott filed her objections. Accordingly, plaintiff's objections were timely and will be considered by the Court. .See Seabrook Mem.; Affidavit of Norman Seabrook (annexed as" }, { "docid": "4240020", "title": "", "text": "it, having regard for the uncertain status of the Illinois litigation. The exceptional circumstances that Colorado River calls for in order to stay or dismiss an action brought in a federal court, in favor of proceedings in a state tribunal, were not present. The district court should expeditiously proceed with the action. Stay vacated and case remanded to the district court for continued proceedings consistent herewith. Costs for appellant. . Screen states in its brief that \"it is unclear whether” Elmendorf's objections to the April 8, 1994 magistrate judge's report, filed on April 25, 1994, were filed within the 10-day period required by 28 U.S.C. § 636(b)(1)(C) (1988). This seems to suggest that we should deem Elmen-dorf’s appeal waived. See, e.g., Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (failure to object within § 636(b)(l)(C)’s ten-day period waives claim for purposes of appellate review); Fed.R.Civ.P. 72(b) (same). However, it appears that Elmendorf’s objections were timely filed. See Fed.R.Civ.P. 72(b) (allowing service by mail of magistrate's report); Fed.R.Civ.P. 6(a) and (e) (describing method of computing time period under federal rules, and stating that, where period allowed is less than 11 days, intervening Saturdays, Sundays and holidays shall not be counted, and, where service upon a party is to be made by mail, adding three days to the period is allowed). . 28 U.S.C. § 636 states, in pertinent part: (b)(1) Notwithstanding any provision of law to the contrary— (A)a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion ... to involuntarily dismiss an action.... (B) a judge may also designate a magistrate ... to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A).... (C) the magistrate shall file his proposed findings and recommendations under sub-paragraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such" }, { "docid": "211017", "title": "", "text": "Memorandum Order in which he alleged that he was served with the magistrate’s report and recommendation on June 28, 1985. He further explained that his mail was sent to the “Western Pen address” [SCIP] where he had been transferred for an evidentiary hearing but that he had already been returned to Graterford when his forwarded mail arrived at SCIP. The district court dismissed plaintiff’s objections by order dated July 24, 1985, accompanied by the following memorandum: On July 8,1985, plaintiff filed untimely objections to the magistrate’s Proposed Findings of Fact, Conclusions of Law and Recommendation for Disposition dated June 17, 1985. The magistrate’s report was served on plaintiff on June 20, 1985 and his objections were therefore due on July 1, 1985 since June 30, 1985 was a Sunday. His objections were executed on July 3, 1985 and filed with the Clerk on July 8, 1985. Both the Magistrate’s Act, 28 U.S.C. Section 636(b)(1) and this court’s Local Rules for Magistrates, Rule 4(b) require a party to file objections to a report and recommendation within ten days after service. The report of the magistrate also advised plaintiff that he had ten days to file objections. Since his objections were untimely they shall be dismissed. It appears that the district court treated the 10 day statutory period for filing objections to the magistrate’s report as jurisdictional. We see no good reason why it should be so regarded. Nothing in the statutory language or legislative history suggests that the 10 day provision is one that speaks in jurisdictional terms. Under these circumstances, analogous statutory provisions establishing time requirements have been treated as statutes of limitations subject to recognized equitable doctrines. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). We agree with the holding in Zelaskowski v. Johns-Manville, Corp., 578 F.Supp. 11, 13 (D.N.J.1983), that “late filing is permissible if the moving party adequately justifies his request for relaxation of the time constraints.” Cases that hold that failure to file objections to the magistrate’s report may be considered as a waiver of appellate" }, { "docid": "7678754", "title": "", "text": "6(e). If the final day should fall on a weekend or legal holiday, the objections would be due on the first official business day thereafter. This procedure will result in a response period of at least seventeen days, with additional days if any legal holidays fall within the period. Should this time period result in excessive delay in urgent cases, the parties can always request the court to shorten the response time. See Fed.R. Civ.P. 6 advisory committee note (1984 amendment); see also United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978) (10-day period provided by 28 U.S.C. § 636(b)(1) to file objections to magistrates’ recommendations is a maximum, not a minimum; court may require a shorter period). In the case at bar, the Recommendation of the Magistrate was mailed, and therefore served, by the Clerk on Monday, January 5, 1987. Applying the method of computation described above, the objections to the recommendation were due to be filed no later than Friday, January 23, 1987. (Monday, January 19, 1987 was a legal holiday, the birthday of Martin Luther King, Jr.). Having been filed on Thursday, January 22, 1987, the defendants’ objections to the recommendation were timely and will be considered by the Court. It is so ORDERED. . Rule 6(a) governs the computation of time under the Federal Rules of Civil Procedure. The rule reads, in relevant part, as follows: In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, ... in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the" }, { "docid": "12304639", "title": "", "text": "1984. Plaintiff alleges that he did not actually receive the R & R at the prison until July 10. Counsel for the defendants conceded at oral argument that the R & R was not received at the Michigan Attorney General’s office until July 7. Plaintiff mailed his objection to the R & R on July 11; it was filed with the district court on July 13. In the interim, however, the district judge adopted the R & R and granted the defendants’ motion to dismiss on July 10, without the benefit of considering plaintiff’s objection. On July 26, 1984, plaintiff filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(1). In order to preserve his right to appeal, he filed a notice of appeal on August 7, 1984. The district court never ruled on the Rule 60(b)(1) motion. I. The threshold issue presented to this court is whether plaintiff waived his right to appeal the district court’s judgment by failing to file timely objections to the magistrate’s R & R. Section 636(b)(1) gives both parties ten days after “being served with a copy” of the R & R to “serve and file written objections” thereto. Assuming the clerk of the district court mailed the R & R to plaintiff on the date it was filed, three provisions of the federal rules of civil procedure come into play. First, three days are added to the ten day period to cover the time for mailing. Fed.R.Civ.P. 6(e). Second, service is complete upon mailing. Id. 5(b). Finally, under Rule 6(a), as it read prior to its most recent amendment in August 1985, computations of time periods exceeding seven days do not exclude intervening weekends or holidays. In other words, plaintiff had thirteen calendar days from June 29, 1984, to “serve and file” written objections to the R & R. This circuit has held that failure to object timely to a magistrate’s R & R where the party is properly notified of the time limit constitutes waiver of that party’s right to appeal from the district court’s entry of judgment in accord with" }, { "docid": "7678748", "title": "", "text": "three days to a response period whenever the responding party is being served by mail. Plaintiffs argue that the three additional days provided by Rule 6(e) should be added to the ten day response period first, thereby eliminating the application of the less-than-eleven-days provision of Rule 6(a). In other words, plaintiffs argue that objections to a magistrate’s recommendation must be filed within thirteen days of the service of the recommendation, without excluding the intervening weekends and holidays. Defendants, on the other hand, argue that the ten day period for responding to the recommendation should be computed excluding intervening weekends and holidays, after which three days should be added pursuant to Rule 6(e). For the following reasons, the Court agrees with the defendants. Prior to its amendment in 1985, Rule 6(a) provided that intermediate Saturdays, Sundays, and legal holidays would be excluded in computing time periods only when the time period was less than seven days. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1161 (1969). Thus, under the earlier form of the Rule, objections to magistrates’ recommendations were due within thirteen days of the service of the recommendations. The thirteen day period was composed of the ten day period prescribed by Rule 72(b) and the three extra days allowed by Rule 6(e) because the recommendations were served by mail. See 7 J. Moore, Moore’s Federal Practice IT72.04[9. — 2] (2d ed. 1986); 12 C. Wright & A. Miller, Federal Practice and Procedure § 3076.8 (Supp.1986). The 1985 amendment to Rule 6(a) extended the exclusion of intermediate weekends and holidays to the computation of time periods of less than eleven days. The Advisory Committee’s comments, which explain the purpose of the amendment, read as follows: The Rule also is amended to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the current version of the Rule, parties bringing motions under rules with 10-day periods could have as few as 5 working days to prepare their motions. This hardship would be especially acute in the case" }, { "docid": "3321348", "title": "", "text": "it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991). In conducting its review, “[t]he district judge may accept, reject, or modify the [recommendation]; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). The Court is mindful of Plaintiffs pro se status and, accordingly, reads his pleadings and filings liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in Plaintiffs use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). “[T]he court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005). Further, pro se status does not relieve Plaintiff of the duty to comply with various rules and procedures governing litigants and counsel or the requirements of the substantive law and, in these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994). III. ANALYSIS A. Plaintiffs Objections 1. Timeliness & Specificity As a threshold matter, the Federal Defendants argue that Plaintiffs objections, which were filed on May 18, 2009, were not timely. (See Doc. # 91 at 2.) The Magistrate Judge’s recommendation is dated April 30, 2009. Objections are due “[w]ithin 10 days after being served with a copy of the” recommendation. Fed.R.Civ.P. 72(b)(2). Where, as here, the time period at issue is less than 11 days, intermediate weekend days are to be excluded from the calculation. Fed.R.Civ.P. 6(a)(2). Moreover, because Plaintiff was served by mail, an additional three days are added to the end of the period. Fed.R.Civ.P. 6(d); see also Fed.R.Civ.P. 72 advisory committee’s notes, 1983 addition (noting that the 10-day period for filing objections is subject to" }, { "docid": "6087301", "title": "", "text": "and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts, (emphasis added). . Revised objections were filed by defendants on June 28, 1986. The Joint Appendix contains no copy of any objections except those filed June 28, 1986. . Section 636(b)(2) contains no similar ten day rule requirement. But see Fed.R.Civ.P. 72(b) dealing with magistrates and pretrial matters, specifically dispositive motions. Rule 72(b) refers to situations where a magistrate is \"assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense.” That rule also contains language similar to that of § 636(b)(1) requiring written objections within ten days. Whether this same time limitation for objections applies to a special master’s report and recommendation is a question not free" }, { "docid": "22374778", "title": "", "text": "984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.) (holding that petitioner’s failure to file timely objections to magistrate judge’s report and recommendation barred further judicial review and no circumstances warranted excusing the default in the interests of justice), cert. denied, — U.S. —, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Sec’y of Health & Human Serv., 892 F.2d 15, 16 (2d Cir.1989) (per curiam) (confirming previously stated rule that “failure to object timely to a magistrate’s report operates as a waiver of any further judicial review of the magistrate’s decision,” although holding that this rule does not apply to pro se parties unless the “magistrate’s report explicitly states that failure to object to the report within ten (10) days will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and [Fed.R.Civ.P.] 72, 6(a) and 6(e)”). Applying the normal rules guiding the timeliness of appeals, the Fund had 10 days to file and serve objections after the magistrate judge’s order was entered (December 10, 1992). Day 1 was the day after entry or December 11. Because the time period involved is less than 11 days, intermediate Saturdays, Sundays and legal holidays do not count. Fed.R.Civ.P. 6(a). Finally, Fed.R.Civ.P. 6(e) provides for an additional three days where service is by mail, as is the case here. See, e.g., Nalty v. Nalty Tree Farm, 654 F.Supp. 1315, 1317-18 (S.D.Ala.1987) (applying above analysis). A simple glance at a December 1992 calendar confirms that the Fund had until December 30, 1992 to file objections. The Fund filed objections on December 28. Thus, the Fund made timely objections to the magistrate judge’s report and recommendation. V. Appellate Jurisdiction Herrmann argues that this court lacks appellate jurisdiction because the Fund filed a notice of appeal before a final decision of the district court had been rendered. 28 U.S.C. § 1291 (1988). However, “a premature notice of appeal from a nonfinal order may ripen into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard and the appellee suffers" }, { "docid": "20014105", "title": "", "text": "Errors complained of in a petition for habeas corpus must rise to the level of a constitutional violation, whereas, on direct appeal the error complained of must rise to the level of plain error. . Boyd claims that, as Scott's objections to the magistrate's report were filed after the ten day filing deadline prescribed by 28 U.S.C. § 636(b)(1), the objections were waived and cannot be raised on appeal. See 28 U.S.C. § 636(b)(1) (1988) (requiring party to serve and file written objections to magistrate’s proposed findings and recommendations within ten days of being served). This claim is without merit in that Scott’s objections were timely pursuant to Rule 6 of the Federal Rules of Civil Procedure, which excludes weekends and legal holidays from the computation of the ten day period. See Fed.R.Civ.P. 6 (1994) (providing that when period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation). Scott received the magistrate’s memorandum and recommendation on Thursday, March 25, 1993, and filed his objections on Tuesday, April 6, 1993. Pursuant to Rule 6 the two intermediate weekends between these dates are excluded from computation. Thus, Scott’s objections were timely. .Scott bases this argument on the portion of the state court opinion that addresses Boyd's objection made at trial before the Allen charge was read to the jury. (Boyd objected to the charge on the ground that it was coercive and forced the minority jurors to change their views.) The court noted that Defense counsel [Boyd] objected to specific language in the charge, but not to the language complained of on appeal. To preserve error a trial objection must distinctly specify each ground of objection. TEX.CODE CRIM.PROC. ANN. art. 36.14 (Vernon Supp.1988). Objections to the charge must be made before it is read to the jury, and must specify every ground of objection. Blackwell v. State, 294 S.W. 852, 854-55 (Tex.Crim.App.1927). The error asserting improper instruction is based on a claim which was not presented as a timely objection to the trial court's charge. Given the objection made on" }, { "docid": "7678747", "title": "", "text": "ORDER HAND, Chief Judge. Today the Court is called upon to decide whether objections to a Recommendation of the Magistrate have been timely filed. Because this procedural question arises with regularity, the Court will address it in some detail. The Magistrate’s Recommendation in question was entered on December 30, 1986. Because of the New Year’s holiday, however, it was not mailed to the parties by the Clerk until Monday, January 5, 1987. The defendants’ objections to the recommendation were filed with the Clerk on Thursday, January 22, 1987. Plaintiffs have argued that the objections to the recommendation were not timely filed and should not be considered in reviewing the recommendation. Under 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, a party has ten days after being served with a recommendation of a magistrate in which to file any objections to the recommendation. Rule 6(a) provides that intermediate weekends and legal holidays shall not be counted when the prescribed time period is less than eleven days. Rule 6(e) also adds three days to a response period whenever the responding party is being served by mail. Plaintiffs argue that the three additional days provided by Rule 6(e) should be added to the ten day response period first, thereby eliminating the application of the less-than-eleven-days provision of Rule 6(a). In other words, plaintiffs argue that objections to a magistrate’s recommendation must be filed within thirteen days of the service of the recommendation, without excluding the intervening weekends and holidays. Defendants, on the other hand, argue that the ten day period for responding to the recommendation should be computed excluding intervening weekends and holidays, after which three days should be added pursuant to Rule 6(e). For the following reasons, the Court agrees with the defendants. Prior to its amendment in 1985, Rule 6(a) provided that intermediate Saturdays, Sundays, and legal holidays would be excluded in computing time periods only when the time period was less than seven days. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1161 (1969). Thus, under the earlier form of" } ]

[ { "docid": "21008700", "title": "", "text": "the “statewide races,” as well as elections for the offices of state Supreme Court Justices and Judges of the Court of Appeals. But what of non-statewide races? Because I have concluded that a $1000 contribution to candidates for non-statewide races in Arkansas is large, I must consider whether the $100 limit imposed by Act I is too small to be constitutional. In Buckley, the Supreme Court observed that the FECA limits were not structured to take into account the widely ranging financial needs of the congressional and presidential campaigns. The Court declared, “ ‘[i]f it is satisfied that some limit, on contributions is necessary, a court has no scalpel to probe, whether', say, a $2,000 ceiling might not serve as well as $1,000.’ Such distinctions in degree become significant only when they can be said to amount to differences in kind.” Buckley, 424 U.S. at 30, 96 S.Ct. at 640 (quoting Buckley v. Valeo, 519 F.2d at 842). As noted, the Carver court found the Missouri contribution limits to be a difference in kind compared to the FECA limits considered in Buckley. Carver, 72 F.3d at 644. In its degree-versus-kind analysis, the Carver court emphasized: (1) the Missouri limits were per election cycle as opposed to per election in Buckley; (2) after adjusting for inflation, the Missouri limits were an even smaller fraction of the FECA limits upheld in Buckley than the bare numbers would indicate; (3) the state’s evidence concerning corrupting contributions involved amounts in the hundreds of thousands of dollars, whereas the contribution limits imposed by the challenged statute ranged only from $100 to $300 dollars; (4) the state adduced no evidence that the particular limits chosen were narrowly tailored to address corruption or the appearance of corruption associated with large campaign contributions; and (5) a much higher percentage of contributors would be affected by the Missouri limits than were affected by the FECA limits at issue in Buckley. Carver, 72 F.3d at 641-44. In deciding whether the $100 limit represents a difference in kind, I begin by addressing the factors upon which the Eighth Circuit relied in" } ]

[ { "docid": "20064500", "title": "", "text": "these examples prove that the Proposition A limits are narrowly tailored. A $420,000 contribution is a far cry from the limits in Proposition A, and the other examples involve individual conduct leading to criminal prosecution. We cannot conclude that the limits in Proposition A are in any way narrowly tailored or carefully drawn to remedy such situations. See Massachusetts Citizens for Life, 479 U.S. at 265, 107 S.Ct. at 631-32 (we may “curtail speech only to the degree necessary to meet the particular problem at hand”); Day, 34 F.3d at 1366. In considering whether the Proposition A limits are narrowly tailored, we must also recognize that the limits were not adopted in a vacuum. The question is not simply that of some limits or none at all, but rather Proposition A as compared to those in Senate Bill 650, which was to become effective January 1, 1995. The Proposition A limits are only ten to twenty percent of the higher limits in Senate Bill 650. The State produced no evidence as to why the Proposition A limits of $100, $200, and $300 were selected. Further, the State presented no evidence to demonstrate that the limits were narrowly tailored to combat corruption or the appearance of corruption associated with large campaign contributions. See Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38. The record is barren of any evidence of a harm or disease that needed to be addressed between the limits of Senate Bill 650 and those enacted in Proposition A. See National Treasury Employees Union, — U.S. at -, 115 S.Ct. at 1017. In ruling that the contribution limits in Buckley were narrowly tailored, the Supreme Court pointed out that only about five percent of the contributors in the 1974 election gave more than the $1,000 limit. Buckley, 424 U.S. at 21 n. 23, 96 S.Ct. at 636 n. 23. The State’s own evidence shows that a much higher percentage of contributors will be impacted by the limits in Proposition A. At trial, the State presented exhibits showing contributions made in past races for Auditor, State Senate and State" }, { "docid": "14407858", "title": "", "text": "on public consensus as evidence of what constitutes cruel and unusual punishment in a death penalty case). Taken together, the evidence presented below suffices under Shrink Missouri to establish Montana’s interest in avoiding corruption or the appearance of corruption. The state’s interest is neither illusory or conjectural. B. M.C.A. § 13-37-216 is “closely drawn” to avoid unnecessary abridgment of associational freedoms. MRLA also challenges M.C.A. § 13-37-216 as insufficiently tailored to the state’s interest in preventing corruption, arguing that it prevents candidates from amassing needed resources, discriminates against challengers, and unconstitutionally prohibits both small and large contributions. We disagree. A campaign contribution limitation is “closely drawn” if it focus[es] on the narrow aspect of political association where the actuality and potential for corruption have been identified — while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist in a limited but nonetheless substantial ex tent in supporting the candidates and committees with financial resources. Buckley, 424 U.S. at 28, 96 S.Ct. 612. In examining whether a contribution limitation is sufficiently tailored to a state’s asserted interest, the focus is as much on those aspects of associational freedom unaffected by the law as the limitations that are imposed. We are mindful that the dollar amounts employed to prevent corruption should be upheld unless they are “so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice beyond the level of notice, and render contributions pointless.” Shrink Missouri, 528 U.S. at 397, 120 S.Ct. 897. In making this determination, we look at all dollars likely to be forthcoming in a campaign, rather than the isolated contribution, id., and we also consider factors such as whether the candidate can look elsewhere for money, Buckley, 424 U.S. at 21-22, 96 S.Ct. 612, the percentage of contributions that are affected, Daggett, 205 F.3d at 461, the total cost of a campaign, id., and how much money each candidate would lose, id. We agree with the district court that the state’s contribution limits are closely drawn to further its interest" }, { "docid": "14407847", "title": "", "text": "(9th Cir.1999), rev’d on other grounds, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000); Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1007 (9th Cir.2003). We review the district court’s findings of fact for clear error. Montana Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1054 (9th Cir.2000) (reviewing a district court’s findings of fact in a campaign contribution limit case under the “clearly erroneous” standard without discussion); Service Employees Int’l Union v. Fair Political Practices Comm’n, 955 F.2d 1312, 1316 (9th Cir.1992) (same). The district court’s application of the law to those facts is reviewed de novo. Bose Corp. v. Consumers Union of the United States, 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). III. Supreme Court Decisions Regarding the Constitutionality of Campaign Finance Restrictions The starting place in the analysis of the constitutionality of campaign finance reform legislation is Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Buckley involved a challenge to the Federal Election Campaign Act. The Act (1) limited individual contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; (2) limited independent expenditures by individuals and groups relative to a clearly identified candidate to $1,000 per year; (3) subjected campaign spending by candidates and political parties to prescribed limits; and (4) required public disclosure of all contributions and expenditures above defined limits. The Buckley Court held that although the provisions limiting contributions to candidates were constitutional, the provisions limiting expenditures by candidates were invalid, violating candidates’ freedom of speech. Id. at 20-21, 96 S.Ct. 612. With respect to the contribution limitations, the Court made three important observations. First, regarding a contributor’s right to free speech, the effect of the contribution limitation was minimal: A limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but" }, { "docid": "17870088", "title": "", "text": "are “overly restrictive as a matter of law.” II. Putting to one side the facial similarity between the statute stricken today and that upheld in Buckley, the State has adequately justified the contribution limits at issue. Buckley and our cases both teach that contribution limits are subject to “the closest scrutiny.” Buckley, 424 U.S. at 25, 96 S.Ct. 612; Carver, 72 F.3d at 636; Russell, 146 F.3d at 567. The State has the burden to demonstrate a compelling interest, which Buckley defined as limiting the reality or appearance of political corruption stemming from large financial contributions. 424 U.S. at 26, 96 5.Ct. 612. Both Carver and Russell found no direct evidence of real or perceived undue influence. Carver, 72 F.3d at 642-43; Russell, 146 F.3d at 569-70. Accordingly, we struck the contribution limits in both cases. The present case is readily distinguishable from Carver and Russell. Although the House and Senate in Missouri preserve no formal legislative history, the record hardly lacks evidence that the statute at issue limits the reality or perception of undue influence and corruption. In summary judgment papers, the State presented an affidavit of Senator Wayne Goode. Goode served twenty-two years in the Missouri House and nine years in the Senate before he co-chaired the Joint Interim Committee on Campaign Finance Reform that prepared Senate Bill 650, now the statute before us. The senator stated that the Committee heard “a broad spectrum of opinions ... on the issue of campaign contribution limits.” He described the committee discussions of what it costs to run a campaign and the level at which contributions threaten to corrupt political officials and to erode public confidence in the electoral process. The committee heard testimony on the issue of balancing the need to run an effective campaign against the need to limit the potential for buying influence. Balancing the concerns, the committee reached the contribution limits of $250 to $1,000 by consensus. Goode and the other members believed that contributions over those limits create both the appearance that contributors could purchase the votes of elected officials and the danger of actual vote-buying." }, { "docid": "15209750", "title": "", "text": "to promulgate “prophylactic” rules limiting contributions, so long as these rules are directly related to the Government’s compelling interest in preventing the appearance of corruption flowing from large campaign contributions. By contrast, the Court has progressively struck down or severely curtailed the Act’s limitations on independent expenditures as failing to show a close enough nexus to the Government’s compelling interest. E.g., Colorado Republican, 518 U.S. at 618, 116 S.Ct. 2309 (Breyer, J., for the plurality) (striking limits on political party independent expenditures); id. at 631, 116 S.Ct. 2309 (Kennedy, J., concurring in the judgment) (same); MCFL, 479 U.S. at 249, 107 S.Ct. 616 (limiting corporate independent expenditure provision to “express advocacy”); NCPAC, 470 U.S. at 500-01, 105 S.Ct. 1459 (striking limits on PAC independent expenditures); Buckley, 424 U.S. at 47-48, 96 S.Ct. 612 (striking limits on independent expenditures by individuals). While on the facts of many of these cases, the Supreme Court has been able to maintain a clean doctrinal division between contributions and expenditures, a separate analytical step by Buckley made clear that the distinction could be easily blurred. Responding to those opposing the contribution/expenditure distinction, the Buckley, Court reassured: The parties defending [the cap on expenditures by individuals] contend that [the cap] is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate’s campaign activities.... Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act. Section 608(b)’s contribution ceilings rather than § 608(e) (l)’s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Id. at 46-47, 96 S.Ct. 612 (footnote omitted) (emphasis added). Thus, Buckley introduced the notion of “coordinated expenditures” and held that for constitutional purposes such expenditures had the status of contributions. See Colorado Republican, 518 U.S. at 617, 116 S.Ct. 2309 (plurality) (“the constitutionally significant fact ... is the lack of coordination between" }, { "docid": "22853833", "title": "", "text": "Court quickly deviates from Buckley, persuading itself that Missouri’s limits do not suppress political speech because, prior to the enactment of contribution limits, “97.62 percent of all contributors to candidates for state auditor made contributions of $2,000 or less.” Ante, at 396. But this statistical anecdote offers the Court no refuge and the citizenry no comfort. As an initial matter, the statistic provides no assurance that Missouri’s law has not reduced the resources supporting political speech, since the largest contributors provide a disproportionate amount of funds. The majority conspicuously offers no data revealing the percentage of funds provided by large contributors. (At least the Court in Buckley relied on the percentage of funds raised by contributions in excess of the limits. 424 U. S., at 21-22, n. 23, 26, n. 27. But whatever the data would reveal, the Court’s position would remain indefensible. If the majority’s assumption is incorrect — i. e., if Missouri’s contribution limits actually do significantly reduce campaign speech — then the majority’s ealm assurance that political speech remains unaffected collapses. If the majority’s assumption is correct — i. e., if large contributions provide very little assistance to a candidate seeking to get out his message (and thus will not be missed when capped) — then the majority’s reasoning still falters. For if large contributions offer as little help to a candidate as the Court maintains, then the Court fails to explain why a candidate would engage in “corruption” for such a meager benefit. The majority’s statistical claim directly undercuts its constitutional defense that large contributions pose a substantial risk of corruption. Given the majority’s ill-advised and illiberal aggregate' rights approach, it is unsurprising that the Court’s proforma hunt for suppressed speech proves futile. See ante, at 395-397. Such will always be the case, for courts have no yardstick by which to judge the proper amount and effectiveness of campaign speech. See, e. g., Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 Yale L. J. 1049, 1061 (1996). I, however, would not fret about such matters. The First Amendment vests choices about the proper" }, { "docid": "10580248", "title": "", "text": "which PACs and political parties pose the most serious risk of corruption, and develop a record that donations to each type of organization, narrowly defined, pose a strong threat of corruption. It is clear that, in principle, such limitations are an “appropriate means ... to protect the integrity of the contribution restrictions upheld ... in Buckley.” CMA, 453 U.S. at 199, 101 S.Ct. 2712. Thus, the Vermont provision is constitutional so long as the danger of corruption of the political system exists. Just as individuals may be limited from directly contributing to campaign organizations, individuals may be limited from doing so indirectly—that is, contributing large sums to PACs or political parties that funnel money to candidates. See Buckley, 424 U.S. at 38, 96 S.Ct. 612; cf. Federal Election Comm’n v. Beaumont, 539 U.S. 146, 155, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (explaining that “restricting contributions by various organizations hedges against, their use as conduits for ‘circumvention of [valid] contribution limits’”) (citation omitted; alteration in original). Vermont does not have the burden to show on a contributor-by-contributor basis that contributions have led to corruption. The plaintiffs’ second argument is that the $200, $300, and $400 limits on contributions to candidates for office are unnecessarily low, and that political parties and PACs should be exempt. The plaintiffs in Buckley also raised this argument, contending that the $1000 limitation regulated more contributions than necessary to accomplish its anti-corruption goals. Specifically, the appellants argued that even contributions of a larger amount did not carry a risk of corruption because no politician would throw away a career and reputation for a $1000 donation. As with the earlier overbreadth argument, the Supreme Court also has rejected this contention. See Buckley, 424 U.S. at 30, 96 S.Ct. 612. “[I]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.” Id. (quotations and citations omitted). The Court reaffirmed the validity of this approach in Shrink, stating that a contribution limit survives scrutiny only if the regulation is “closely" }, { "docid": "20064487", "title": "", "text": "this primary interest to the remaining interests offered to justify contribution limits. Id. at 25-26, 96 S.Ct. at 637-38 (identifying the other interests as equalizing the relative ability of all citizens to affect the outcome of an election and slowing the skyrocketing cost of political campaigns). The Court, in discussing large contributions, specifically referred to disturbing examples surfacing after the 1972 election. Id. at 27, 96 S.Ct. at 639. Examining the 1974 election, the Court found that the $1,000 contribution limit would not severely impact political dialogue, pointing out that most contributions (94.9 percent in the 1974 election) came from contributions of $1,000 or less. Id. at 21 n. 23, 26 n. 27, 96 S.Ct. at 636 n. 23, 638 n. 27. The Court decided that in addition to requiring the disclosure of contributions, Congress was entitled to conclude that contribution limits were necessary “to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions.” Id. at 28, 96 S.Ct. at 639. The Supreme Court recently reaffirmed that the compelling interest identified in Buckley was limiting large contributions to candidates. The Court stated: Buckley identified a single narrow exception to the rule that limits on political activity were contrary to the First Amendment. The exception relates to the perception of undue influence of large contributors to a candidate: To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined .... ... Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical ... if confidence in the system of repre sentative Government is not to be eroded to a disastrous extent. Citizens Against Rent Control, 454 U.S. at 296-97, 102 S.Ct. at 438 (citations and quotations omitted) (emphasis added). The district court held that “[u]nder Buckley, Missouri clearly has a compelling state interest in limiting campaign contributions.” Carver, 882 F.Supp. at 904. This does not square with the interest of limiting “large campaign contributions” as defined in Buckley. The" }, { "docid": "11683444", "title": "", "text": "scrutiny, a contribution limit involving ‘significant interference’ with associational rights ... could survive if the Government demonstrated that the contribution regulation was ‘closely drawn’ to match a ‘sufficiently important interest,’ ... though the dollar amount of the limit need not be ‘fine tun[ed].’ ” Id. at 903-04 (quoting Buckley, 424 U.S. at 25, 30, 96 S.Ct. 612). It then invoked Buckley’s identification of the actuality and appearance of corruption as the justification of contribution limits, see Buckley, 424 U.S. at 26-27, 96 S.Ct. 612, adding: “In speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we recognized a concern not confined to bribery of public officials, but extending to the. broader threat from politicians too compliant with the wishes of large contributors.” Shrink Missouri PAC, 120 S.Ct. at 905. The Court in Shrink Missouri PAC also spoke to several related issues. It observed that although the quantum of evidence of corruption or its appearance in Buckley “exemplifies a sufficient justification for contribution limits, it does not speak to what may be necessary as a minimum.” Id. at 906. It also made clear that an argument based on adjusting the Buckley-approved $1,000 ceiling for subsequent loss of purchasing power to establish the maximum limit was the product of misunderstanding. See id. at 909. And it was unmoved by the argument that contribution limits necessarily favor incumbents over challengers. See id. at 905 n. 4. Finally, the Court was apparently unimpressed that following the imposition- of the contribution limits, total spending for five statewide offices affected by the $1,075 contribution limit declined by more than half, a fact pointed out in Justice Thomas’s dissent. See id. at 925 n. 10 (Thomas, J., dissenting). In Buckley, the Court was faced with the more benign statistic, agreed to by the parties, that only about 5% of the funding raised by all federal congressional candidates in the prior election would not have been allowed by the limits. See Buckley, 424 U.S. at 21 n. 23, 96 S.Ct. 612. Given this framework of principles, we first consider whether there is" }, { "docid": "21008703", "title": "", "text": "However, as to non-statewide races, I do find a $1000 contribution to be “large.” The defendants’ argument that the $100 limit has been narrowly tailored is convincing, particularly in light of Carver. I see this as a close call. Fourth, in contrast to the Carver case, the defendants and Citizens introduced substantial evidence of the need for the reduced limits found in Act I. For example, the Stern study, as well as reports compiled by ACORN, indicate that large contributions, as defined by this Court, have led to the perception of undue influence in non-statewide races. Fifth, in Carver, the Eighth Circuit noted that a sizable percentage of contributors would be affected by the new limits. An even higher percentage of contributors will apparently be affected by the Act I limits here. Mr. Stern’s study indicates that the $100 limit will affect as much as eighty percent of contributions in Arkansas Senate and House races. I find persuasive the Citizens’ argument that contribution limits amount to a difference in kind, when compared to the limits upheld in Buckley, because the limits do not permit the same quality of political expression and association that the FECA limits allowed. In upholding FECA’s $1000 contribution limit, the Buckley Court concluded that the limit: focuses precisely on the problem of large campaign contributions the narrow aspect of political association where the actuality and potential for corruption have been identified while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources. Significantly, [FECA’s] contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties. 424 U.S. at 28-29, 96 S.Ct. at 639-40. See also id. at 21, 96 S.Ct. at 636 (“contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy”). Thus" }, { "docid": "20064501", "title": "", "text": "A limits of $100, $200, and $300 were selected. Further, the State presented no evidence to demonstrate that the limits were narrowly tailored to combat corruption or the appearance of corruption associated with large campaign contributions. See Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38. The record is barren of any evidence of a harm or disease that needed to be addressed between the limits of Senate Bill 650 and those enacted in Proposition A. See National Treasury Employees Union, — U.S. at -, 115 S.Ct. at 1017. In ruling that the contribution limits in Buckley were narrowly tailored, the Supreme Court pointed out that only about five percent of the contributors in the 1974 election gave more than the $1,000 limit. Buckley, 424 U.S. at 21 n. 23, 96 S.Ct. at 636 n. 23. The State’s own evidence shows that a much higher percentage of contributors will be impacted by the limits in Proposition A. At trial, the State presented exhibits showing contributions made in past races for Auditor, State Senate and State Representative. According to the State’s exhibits, in the 1994 Auditor’s race, 19.5 percent of the contributors gave more than the $300 Proposition A limit, but less than the $1,000 Senate Bill 650 limit. In the State Senate race, 21.6 percent of the contributors gave more than the $200 Proposition A limit, but less than the $1,000 Senate Bill 650 limit on an election cycle basis. In the State Representative race, 19.0 percent of the contributors gave more than the $100 Proposition A limit, but less than the $250 Senate Bill 650 limit. Further, the State’s exhibits show that 27.5 percent of the contributors in the 1994 Auditor’s race gave more than the $300 Proposition A limits. In the State Senate race, 23.7 percent of the contributors gave more than the $200 Proposition A limit. Finally, in the State Representative race, 35.6 per cent of the contributors gave more than the $100 Proposition A limit. The State made no showing as to why it was necessary to adopt the lowest contribution limits in the nation and" }, { "docid": "20064502", "title": "", "text": "Representative. According to the State’s exhibits, in the 1994 Auditor’s race, 19.5 percent of the contributors gave more than the $300 Proposition A limit, but less than the $1,000 Senate Bill 650 limit. In the State Senate race, 21.6 percent of the contributors gave more than the $200 Proposition A limit, but less than the $1,000 Senate Bill 650 limit on an election cycle basis. In the State Representative race, 19.0 percent of the contributors gave more than the $100 Proposition A limit, but less than the $250 Senate Bill 650 limit. Further, the State’s exhibits show that 27.5 percent of the contributors in the 1994 Auditor’s race gave more than the $300 Proposition A limits. In the State Senate race, 23.7 percent of the contributors gave more than the $200 Proposition A limit. Finally, in the State Representative race, 35.6 per cent of the contributors gave more than the $100 Proposition A limit. The State made no showing as to why it was necessary to adopt the lowest contribution limits in the nation and restrict the First Amendment rights of so many contributors in order to prevent corruption or the appearance of corruption associated with large campaign contributions. Proposition A substantially limits Carver’s ability to contribute to candidates and will have a considerable impact on many contributors besides Carver. The State simply argues that limits which are nearly four times as restrictive as the limits approved in Buckley are narrowly tailored. The State argues we may not fine tune the specific dollar amount of the limits, but fails to demonstrate that the Proposition A limits are not a “difference in kind.” See Kusper, 414 U.S. at 61, 94 S.Ct. at 309-10 (overturning an enrollment requirement approximately three times longer than that approved by the Court in Rosario). We hold that the Proposition A limits amount to a difference in kind from the limits in Buckley. The limits are not closely drawn to reduce corruption or the appearance of corruption associated with large campaign contributions. Thus, the State has failed to carry its burden of demonstrating that Proposition A will" }, { "docid": "14806036", "title": "", "text": "such evidence here. Accordingly, the Court has no basis on which it could find that the year-based limit discriminates against challengers as a class. The Court therefore finds that Racer has failed to carry his burden as to the year-based contribution limits. See Jirau-Bernal v. Agrait, 37 F.3d 1, 2 (1st Cir.1994) (“A plaintiff asserting a political discrimination claim under the First Amendment bears the preliminary burden of producing competent direct or circumstantial evidence.... ”). C. Aggregate Special Interest Limit Minn.Stat. § 10A.27, subd. 11, caps the aggregate amount of contributions that a candidate may receive from political action committees (“PAC”). CSPC alleges that this aggregate limit effectively bans PAC donations once candidates reach the aggregate threshold. The aggregate limit states, in pertinent part: A candidate must not permit the candidate’s principal campaign committee to accept a contribution from a political committee, political fund, lobbyist, or large contributor, if the contribution will cause the aggregate contributions from those types of contributors to exceed an amount equal to 20 percent of the expenditure limits for the office sought by the candidate, provided that the 20 percent limit must be rounded to the nearest $100. Minn.Stat. § 10A.27, subd. 11. Defendants assert that the aggregate limit is designed to thwart corruption and the appearance of corruption by preventing PACs and other special interests from exerting undue influence over the election process. A contribution regulation may significantly interfere with associational rights so long as “the Government demonstrate[s] that contribution regulation [is] ‘closely drawn’ to match a ‘sufficiently important interest.’ ” Shrink Missouri, 528 U.S. at 387-88, 120 S.Ct. 897 (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612). This “relatively complaisant review” is appropriate because, as stated above, “contributions lie closer to the edges than to the core of political expression.” Beaumont, 123 S.Ct. at 2210. As with the inter-candidate transfer ban, the aggregate special interest cap addresses the compelling government interest of preventing “corruption and the appearance of corruption.” Shrink Missouri, 528 U.S. at 390, 120 S.Ct. 897 (internal quotations omitted). “If the record demonstrates that the danger of corruption, or the" }, { "docid": "11701282", "title": "", "text": "In a case addressing limits on corporate campaign contributions, the Court stated that the level of scrutiny is based on the importance of the “political activity at issue” to effective speech or political association .... [Restrictions on political contributions have been treated as merely “marginal” speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression. FEC v. Beaumont, 539 U.S. 146, 161, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (citations omitted). The Court reiterated that lesser scrutiny is appropriate because “the transformation of contributions into political debate involves speech by someone other than the contributor.” Id. at 161-62, 123 S.Ct. 2200 (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612 (punctuation omitted)). Similarly, this court has read Buckley to stand for the principle that “Contribution limits do not significantly burden speech because the communicative content of the act of contributing is largely symbolic, and therefore is not diminished by limits on the amount of the contribution.” Jacobus v. Alaska, 338 F.3d 1095, 1108 (9th Cir.2003). Because it restricts only this indirect speech, a contribution limit “does not in any way infringe the contributor’s freedom to discuss candidates and issues.” Id. (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612). Accordingly, in light of Beaumont and its predecessors, we have applied Buckley’s less rigorous scrutiny to contribution caps. See Mont. Right to Life, 343 F.3d at 1092 (limits on contributions made by political action committees to candidates); Jacobus, 338 F.3d at 1109 (limits on “soft money” contributions to political parties). We find no precedent holding that contributions to ballot measure campaigns convey a different type or degree of speech from contributions to candidates or parties. We therefore hold that the district court’s preliminary decision to apply Buckley’s less rigorous scrutiny was correct. III. We now turn to the district court’s holding that the City has a sufficiently important state interest to justify imposing contribution limits during the signature-gathering phase of a recall effort. The paradigmatic sufficient state interest under Buckley is the prevention of corruption, or" }, { "docid": "21008701", "title": "", "text": "to the FECA limits considered in Buckley. Carver, 72 F.3d at 644. In its degree-versus-kind analysis, the Carver court emphasized: (1) the Missouri limits were per election cycle as opposed to per election in Buckley; (2) after adjusting for inflation, the Missouri limits were an even smaller fraction of the FECA limits upheld in Buckley than the bare numbers would indicate; (3) the state’s evidence concerning corrupting contributions involved amounts in the hundreds of thousands of dollars, whereas the contribution limits imposed by the challenged statute ranged only from $100 to $300 dollars; (4) the state adduced no evidence that the particular limits chosen were narrowly tailored to address corruption or the appearance of corruption associated with large campaign contributions; and (5) a much higher percentage of contributors would be affected by the Missouri limits than were affected by the FECA limits at issue in Buckley. Carver, 72 F.3d at 641-44. In deciding whether the $100 limit represents a difference in kind, I begin by addressing the factors upon which the Eighth Circuit relied in Carver. First, Act I’s contribution limits apply on a per election basis. This means that .the Act’s limits apply anew in each election within an election cycle— primary, general election, and any run-off. In contrast, the Missouri law applied to the election cycle as a single unit. Second, the Carver court discussed the erosive effects of inflation in comparing FECA limits at issue in Buckley to the Missouri limits. This discussion applies here as well. In 1976 dollars, Act I’s $100 limit shrinks to less than forty percent of its face value, and only four percent of the federal $1000 limit upheld in Buckley. See Carver, 72 F.3d at 641 (citing Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir.1994)). Third, in contrast to Carver, where state contribution limits were imposed for the first time, here the perceived undue influence argued by the defendants and Citizens occurred in spite of the $1000 limit already established by Arkansas. As to statewide races, a $1000 contribution is not large, and Act I’s $300 limit is unconstitutionally low." }, { "docid": "17870073", "title": "", "text": "contributions in amounts greater than the limits in place. See Russell, 146 F.3d at 568 (“The defendants must prove first that there is real or perceived undue influence or corruption at tributable to large political contributions ____”) (emphasis added); id. at 569 (noting that none of the defendants “provided any credible evidence” of actual corruption, nor had they proved a perception of corruption); Carver, 72 F.3d at 638. In reaching its conclusions concerning the constitutionality of federal campaign contribution restrictions, the Buckley Court noted the perfidy that had been uncovered in federal campaign financing in 1972. See 424 U.S. at 27 n. 28, 96 S.Ct. 612. But we are unwilling to extrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from “large” campaign contributions, without some evidence that such problems really exist. See Russell, 146 F.3d at 569; Carver, 72 F.3d at 638. We will not infer that state candidates for public office are corrupt or that they appear corrupt from the problems that resulted from undeniably large contributions made to federal campaigns over twenty-five years ago. The State therefore must prove that Missouri has a real problem with corruption or a perception thereof as a direct result of large campaign contributions. For its evidence, the State relies on the affidavit of the state senator who eo-chaired the Interim Joint Committee on Campaign Finance Reform when the contribution limits were enacted. That senator pointed to no evidence that “large” campaign contributions were being made in the days before limits were in place, much less that they resulted in real corruption or the perception thereof. See Buckley, 424 U.S. at 28, 96 S.Ct. 612 (noting that “the problem of large campaign contributions [is] the narrow aspect of political association where the actuality and potential for corruption have been identified”) (emphasis added). The senator did not state that corruption then existed in the system, only that he and his colleagues believed there was the “real potential to buy votes” if the limits were not enacted, and that contribur tions greater than the limits" }, { "docid": "11683461", "title": "", "text": "effects on campaign funding are not so significant as appellants predict. The official records of the Commission state that in 1998 the average Senate candidate incurred expenses of $18,445 and the average House candidate $4,725. Beyond that, as evinced by the parties’ calculations, there are a variety of approaches to analyzing the statistics in order to exaggerate or downplay the results. At present, only “worst-case” scenario statistics, which consider the historical funding pattern and discount any contribution made over the limit, are available. These statistics, however, do not account for adaptations in human behavior and the likelihood that patterns will change to recoup whatever may be lost. Thus, the only picture that we can create by utilizing past statistics is one which likely overpredicts the resultant loss of contributions. Indeed, with such a bellwether, the flock would never go anywhere. For example, a donor who wishes to give $500 to a legislative candidate may choose to make a $250 donation to the primary campaign and another $250 donation for the general election, fully in compliance with the limits. Because some candidates will opt for public funding, there will be fewer candidates competing for donors’ dollars. Furthermore, candidates will seek out additional supporters if necessary, as contemplated in Buckley: The overall effect of the [contribution limits] is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression. Buckley, 424 U.S. at 21-22, 96 S.Ct. 612; see id. at 26 n. 27, 96 S.Ct. 612 (“Presumably, some or all of the contributions in excess of $1,000 could have been replaced through efforts to raise additional contributions from persons giving less than $1,000.”). Candidates may, as some have predicted, resort to additional kinds of low-level fundraising events. Moreover, there exists, as appellants’ expert acknowledged, the obvious opportunity for more members of a family, or officers and employees of a company," }, { "docid": "21008702", "title": "", "text": "Carver. First, Act I’s contribution limits apply on a per election basis. This means that .the Act’s limits apply anew in each election within an election cycle— primary, general election, and any run-off. In contrast, the Missouri law applied to the election cycle as a single unit. Second, the Carver court discussed the erosive effects of inflation in comparing FECA limits at issue in Buckley to the Missouri limits. This discussion applies here as well. In 1976 dollars, Act I’s $100 limit shrinks to less than forty percent of its face value, and only four percent of the federal $1000 limit upheld in Buckley. See Carver, 72 F.3d at 641 (citing Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir.1994)). Third, in contrast to Carver, where state contribution limits were imposed for the first time, here the perceived undue influence argued by the defendants and Citizens occurred in spite of the $1000 limit already established by Arkansas. As to statewide races, a $1000 contribution is not large, and Act I’s $300 limit is unconstitutionally low. However, as to non-statewide races, I do find a $1000 contribution to be “large.” The defendants’ argument that the $100 limit has been narrowly tailored is convincing, particularly in light of Carver. I see this as a close call. Fourth, in contrast to the Carver case, the defendants and Citizens introduced substantial evidence of the need for the reduced limits found in Act I. For example, the Stern study, as well as reports compiled by ACORN, indicate that large contributions, as defined by this Court, have led to the perception of undue influence in non-statewide races. Fifth, in Carver, the Eighth Circuit noted that a sizable percentage of contributors would be affected by the new limits. An even higher percentage of contributors will apparently be affected by the Act I limits here. Mr. Stern’s study indicates that the $100 limit will affect as much as eighty percent of contributions in Arkansas Senate and House races. I find persuasive the Citizens’ argument that contribution limits amount to a difference in kind, when compared to the limits" }, { "docid": "17870072", "title": "", "text": "the contribution limits at issue are narrowly drawn to serve that interest. See Buckley, 424 U.S. at 25, 96 S.Ct. 612; Russell, 146 F.3d at 567; Carver, 72 F.3d at 638. A. The State contends that its compelling interest is in avoiding the corruption or the perception of corruption brought about when candidates for elective office accept large campaign contributions. The State further posits, citing Buckley, that corruption and the perception thereof are inherent in political campaigns where large contributions are made, and that it is unnecessary for the State to demonstrate that these are actual problems in Missouri’s electoral system. Recent precedent from this Court is to the contrary. In both Carver and Russell, we were not satisfied with the mere contention that the states have an interest (an indisputably compelling interest, see Day v. Holahan, 34 F.3d 1356, 1365 (8th Cir.1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995)) in maintaining the integrity of their elections. We required some demonstrable evidence that there were genuine problems that resulted from contributions in amounts greater than the limits in place. See Russell, 146 F.3d at 568 (“The defendants must prove first that there is real or perceived undue influence or corruption at tributable to large political contributions ____”) (emphasis added); id. at 569 (noting that none of the defendants “provided any credible evidence” of actual corruption, nor had they proved a perception of corruption); Carver, 72 F.3d at 638. In reaching its conclusions concerning the constitutionality of federal campaign contribution restrictions, the Buckley Court noted the perfidy that had been uncovered in federal campaign financing in 1972. See 424 U.S. at 27 n. 28, 96 S.Ct. 612. But we are unwilling to extrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from “large” campaign contributions, without some evidence that such problems really exist. See Russell, 146 F.3d at 569; Carver, 72 F.3d at 638. We will not infer that state candidates for public office are corrupt or that they appear corrupt from the problems that resulted from" }, { "docid": "22853832", "title": "", "text": "political committees should be subjected to the same limits as individuals, and fails to explain why caps that vary with the size of political districts are tailored to corruption. I cannot fathom how a $251 contribution could pose a substantial risk of “seeur[ing] a political quid pro quo.” Buckley v. Valeo, supra, at 26. Thus, contribution caps set at such levels could never be “closely drawn,” ante, at 387 (quoting Buckley v. Valeo, supra, at 25), to preventing quid pro quo corruption. The majority itself undertakes no such defense. The Court also reworks Buckley's aggregate approach to the free speech rights of candidates. It begins on the same track as Buckley, noting that “a showing of one affected individual does not point up a system of suppressed political advocacy that would be unconstitutional under Buckley.” Ante, at 396. See also, e. g., ibid, (claiming that candidates “ ‘are still able to amass impressive campaign war chests’ ” (quoting Shrink Missouri Government PAC v. Adams, 5 F. Supp. 2d 734, 741 (ED Mo. 1998))). But the Court quickly deviates from Buckley, persuading itself that Missouri’s limits do not suppress political speech because, prior to the enactment of contribution limits, “97.62 percent of all contributors to candidates for state auditor made contributions of $2,000 or less.” Ante, at 396. But this statistical anecdote offers the Court no refuge and the citizenry no comfort. As an initial matter, the statistic provides no assurance that Missouri’s law has not reduced the resources supporting political speech, since the largest contributors provide a disproportionate amount of funds. The majority conspicuously offers no data revealing the percentage of funds provided by large contributors. (At least the Court in Buckley relied on the percentage of funds raised by contributions in excess of the limits. 424 U. S., at 21-22, n. 23, 26, n. 27. But whatever the data would reveal, the Court’s position would remain indefensible. If the majority’s assumption is incorrect — i. e., if Missouri’s contribution limits actually do significantly reduce campaign speech — then the majority’s ealm assurance that political speech remains unaffected collapses. If" } ]

[ { "docid": "16751753", "title": "", "text": "of buyers, they also promote inter-brand competition by allowing a manufacturer to achieve certain efficiencies in the distribution of its products____ They are, therefore, to be examined under the rule of reason standard. Oreck Corporation v. Whirlpool Corporation, 579 F.2d 126, 131 (2d Cir.1978) (en banc), cert. denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1979) (citations omitted). The tire rule fits this characterization of a vertical restraint as a combination of persons at different levels of the market structure. M & H is complaining essentially that the drivers (the purchasers of tires) agreed with Hoosier (a seller of tires) and that the tracks enforced the arrangement. Such an agreement is best characterized as vertical. The Second Circuit has stuck with the horizontal-vertical distinction, see Borger v. Yamaha International Corporation, 625 F.2d 390 (2d Cir.1980), and this distinction has been employed in other circuits. See, e.g., Gough v. Rossmoor Corporation, 585 F.2d 381 (9th Cir.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). And, the Supreme Court has .seemingly gone along with the distinction at least up to the point of a case such as Klor’s, infra. Compare Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (rule of reason applied to vertical territorial restriction placed on retailers by manufacturers) and Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961) (vertical exclusive dealing contracts analyzed under rule of reason) with Fashion (per se treatment given to horizontal arrangement) and Eastern States (same), supra. In United States v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), the Court said: One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a “horizontal” restraint in contradistinction to combinations of persons at different levels of the market structure, e.g., manu facturers and distributors, which are" } ]

[ { "docid": "4438592", "title": "", "text": "Sylvania Inc., 433 U.S. 36, 51-57, 97 S.Ct. 2549, 2558-61, 53 L.Ed.2d 568 (1977). It can result in a more vigorous marketing of the product, facilitating market penetration and increasing market share. Because the marketing integration could increase interbrand competition, the NCAA argues that the integration and its accompanying restraints should be assessed under the rule of reason. Whether stimulating interbrand competition by restraining intrabrand competition is procompetitive depends in part on the nature of the interbrand product market. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19; ABA Section of Antitrust Law, Vertical Restrictions Limiting Intrabrand Competition 60-71 (Monograph No. 2, 1977). Therefore, it is difficult to assess the validity of the NCAA’s argument without getting into the. “enormous complexities of market definition that the per se rule seeks to avoid.” R. Bork, The Antitrust Paradox 269. Broadcast Music makes clear that in assessing the facial validity of an integration, courts are not to engage in rule of reason analysis. 441 U.S. at 19 n. 33, 99 S.Ct. at 1562 n. 33. Yet we need not fully explore the plan’s effect on the interbrand market because we conclude that the marketing integration itself is so fraught with anticompetitive potential that it must be considered invalid per se. A comparison of the integration in Broadcast Music with the integrated marketing scheme in the instant case highlights the anticompetitive risks that inhere in the television plan and network contracts. As did the performing rights societies in Broadcast Music, the NCAA offers a product — exclusive broadcast rights to all NCAA games — that is different from that which the individual schools could offer. However, unlike the blanket license at issue in Broadcast Music, the new and different product in this case comes at the expense of the product that would otherwise be offered by the schools. In Broadcast Music, the copyright holders retained the right to negotiate individual contracts: they could sell outside the blanket licensing arrangement. Under the television plan at issue here schools are not permitted to sell outside" }, { "docid": "22435313", "title": "", "text": "to interpret facts and to predict consequences. Chicago Board of Trade, 246 U.S. at 238, 38 S.Ct. 242. Thus, “[a]s its name suggests, the rule of reason requires the fact-finder to decide whether under all the circumstances of the case the restrictive practice imposes an unreasonable restraint on competition,” Maricopa County Medical Society, 457 U.S. at 343, 102 S.Ct. 2466, i.e., “whether the challenged agreement is one that promotes competition or one that suppresses competition,” National Society of Professional Engineers, 435 U.S. at 691, 98 S.Ct. 1355; see, e.g., Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (“Under this rule, the factfinder weighs all of the circumstances of a case.... ”). Under the rule of reason, the plaintiffs bear an initial burden to demonstrate the defendants’ challenged behavior had an actual adverse effect on competition as a whole in the relevant market.... Because the antitrust laws protect competition as a whole, evidence that plaintiffs have been harmed as individual competitors will not suffice.... If the plaintiffs satisfy their initial burden, the burden shifts to the defendants to offer evidence of the pro-competitive effects of their agreement.... Assuming defendants can provide such proof, the burden shifts back to the plaintiffs to prove that any legitimate competitive benefits offered by defendants could have been achieved through less restrictive means.... Ultimately, the factfin-der must engage in a careful weighing of the competitive effects of the agreement — both pro and con — to determine if the effects of the challenged restraint tend to promote or destroy competition. Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc., 386 F.3d 485, 506-07 (2d Cir.2004) (internal quotation marks omitted) (emphasis in original). In a few cases, the Supreme Court has ruled that the challenged practice should neither be held a per se violation of the Sherman Act nor be subjected to full-blown rule-of-reason analysis, but rather should be held illegal on the basis of an “abbreviated or ‘quick-look’ [rule-of-reason] analysis” because “the great likelihood of anticompetitive effects can easily be ascertained.” California Dental Ass’n v. FTC, 526" }, { "docid": "6684458", "title": "", "text": "alternative health care networks available, the effect of substituting one provider for another in a particular PPO is limited. Competition among managed-care plans checks any anticompetitive effects of market power achievable from aggregating providers of hospital services in much the same way as interbrand competition “provides a significant check on the exploitation of intrabrand market power because of the ability of consumers to substitute a different brand of the same product.” Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 51 n. 19, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568 (1977). Just as vertical location restrictions imposed by manufacturers on dealers have the potential for “simultaneous reduction of intrabrand competition and stimulation of in-terbrand competition,” id. at 51, 97 S.Ct. at 2558, restricting the number of health care providers affiliated with a PPO can simultaneously reduce competition among them and stimulate competition between health service networks. The Department of Justice guidelines relating to PPOs reflect this understanding: A rale of reason analysis usually is applied in judging the legality of excluding providers from a multiprovider network. The focus of the analysis is not on whether a particular provider has been harmed by the exclusion, but rather whether the exclusion reduces competition among providers in the market and thereby harms consumers. Therefore, exclusion may present competitive concerns if providers are unable to compete effectively without access to the network, and competition is thereby harmed. The Agencies also recognize, however, that there may be procompetitive reasons associated with the exclusion, such as the provider’s competence or ability and willingness to meet the network’s cost-containment goals. In addition, in certain circumstances network membership restrictions may be procompetitive by giving nonmember providers the incentive to form other networks in order to compete effectively with the network. DOJ Enforcement Policy, 1994 WL 642477 at *42. Applying the rule of reason here, DHJ has not presented evidence that affiliation with SMA was necessary to compete in the marketplace or that its exclusion from SMA somehow reflected injury to competition generally. Although we assume for present purposes that DHJ was damaged as a result of its" }, { "docid": "10517560", "title": "", "text": "preferred providers, and generally a hospital will still deal with any nursing agency when the preferred agencies with which the hospital has contracted for nursing services fail to meet its needs. The record shows, in fact, that more than a trifling portion of hospital nursing business in Palm Beach County continued to go to nonpreferred agencies after the PPP was in operation. Also, due to the rise in HMOs, home care, and similar trends in the medical world, facilities other than hospitals provide the market, the supply, and the facilities necessary for nonpreferred agencies to compete with each other and with preferred agencies in the marketplace. Per se treatment has been given to those practices which history has shown have only anticompetitive effects. “[A]nalyzing this case under the per se rubric would remain inappropriate absent some demonstration that the practice at issue historically leads to anticompetitive effects in the market.” Retina Assocs., 105 F.3d at 1381. No history of this kind seems to exist for health-care preferred-provider programs materially similar to what we have before us now. We conclude, based upon undisputed facts, that the practice of this PPP is not deserving of per se treatment and was properly evaluated under the rule of reason. B. Rule of Reason The rule of reason requires “the factfinder [to weigh] all of the circumstances of the case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T.V., Inc. v. GTE Sylvania Inc., 43B U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). The rule of reason should be applied to practices designed to “increase economic efficiency or render markets more, rather than less, competitive.” BMI, 441 U.S. at 19-20, 99 S.Ct. at 1562-63; see also Northwest, 472 U.S. at 289-90, 105 S.Ct. at 2616-17. “[T]o satisfy the rule of reason, the plaintiff must prove that the [conduct] had an adverse effect on competition.” Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1392 (10th Cir.1992). But, competition occurs only in a market. Thus, “before we can reach the larger question of whether [defendants] violated" }, { "docid": "3298863", "title": "", "text": "L.Ed.2d 568 (1977). Continental T.V. explicitly recognized that positive effects on mferbrand competition can justify anticompetitive effects on mira-brand competition. Id. at 51-59, 97 S.Ct. at 2557-62. Although Continental T.V. can reasonably be interpreted as referring only to interbrand and intrabrand components of the same relevant market, Hornsby Oil Co., Inc. v. Champion Spark Plug Co., 714 F.2d 1384, 1394 (5th Cir.1983), there is also some indication that interbrand and intrabrand competition necessarily refer to distinct, yet related, markets. Continental T.V., 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19 (“The degree of intrabrand competition is wholly independent of the level of interbrand competition.”). Arguably, the market put forward by the NFL—that is the market for NFL football in competition with other forms of entertainment—is closely related to the relevant market found by the jury such that the procom-petitive benefits in one can be compared to the anticompetitive harms in the other. Clearly this question can only be answered upon a much more in-depth inquiry that we need not, nor find it appropriate to, embark upon at this time. Finally, we note that although balancing harms and benefits in different markets may be unwieldy and confusing, such is the case with a number of balancing tests that a court or jury is expected to apply all the time. Indeed, Justice Brandéis’ famous formulation of the rule of reason seems to contemplate the balancing of a wide variety of factors and considerations, many of which are not necessarily comparable or correlative: The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be" }, { "docid": "3298862", "title": "", "text": "restraint of trade simply because the practice produces some unrelated benefits to competition in another market. On the other hand, several courts, including this Circuit, have found it appropriate in some cases to balance the anticompetitive effects on competition in one market with certain procompetitive benefits in other markets. See, e.g., NCAA, 468 U.S. at 115-20, 104 S.Ct. at 2967-70; Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 799 (1st Cir.1988); M & H Tire Co. v. Hoosier Racing Tire Corp., 733 F.2d 973, 986 (1st Cir.1984); L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399. Moreover, the district court’s argument that it would be impossible to compare the procompetitive effects of the NFL’s policy in the mferbrand market of competition between the NFL and other forms of entertainment, with the anticompetitive effects of the mirabrand market of competition between NFL teams for the sale of their ownership interests, is arguably refuted by the Supreme Court’s holding in Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Continental T.V. explicitly recognized that positive effects on mferbrand competition can justify anticompetitive effects on mira-brand competition. Id. at 51-59, 97 S.Ct. at 2557-62. Although Continental T.V. can reasonably be interpreted as referring only to interbrand and intrabrand components of the same relevant market, Hornsby Oil Co., Inc. v. Champion Spark Plug Co., 714 F.2d 1384, 1394 (5th Cir.1983), there is also some indication that interbrand and intrabrand competition necessarily refer to distinct, yet related, markets. Continental T.V., 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19 (“The degree of intrabrand competition is wholly independent of the level of interbrand competition.”). Arguably, the market put forward by the NFL—that is the market for NFL football in competition with other forms of entertainment—is closely related to the relevant market found by the jury such that the procom-petitive benefits in one can be compared to the anticompetitive harms in the other. Clearly this question can only be answered upon a much more in-depth inquiry that we need not, nor find it" }, { "docid": "676138", "title": "", "text": "F.Supp. 149, 152 (S.D.N.Y.1974); San Francisco Seals v. NHL, 379 F.Supp. 966, 968, 970-71 (E.D.Cal.1974); United States v. National Football League, supra. Viewing the cross-ownership ban in the light of the rule of reason, the decisive issue, recently articulated by the Supreme Court in National Soc. of Professional Engineers v. U. S., supra, is “whether the challenged agreement is one that promotes competition or one that suppresses competition.” 435 U.S. at 691, 98 S.Ct. at 1365. Crucial to this evaluation is inquiry into “the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed,” to the end that the court may “form a judgment about the competitive significance of the restraint.” In short, I must ultimately analyze the purpose and effect of the cross-ownership ban, Oreck Corp. v. Whirlpool Corp., supra, 579 F.2d at 133, and determine whether on balance its anticompetitive effects outweigh its pro-competitive benefits. See e. g., Professional Engineers, supra; Continental T. V. v. GTE Sylvania, Inc., 433 U.S. 36, 49-51, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Plaintiffs are entitled to a preliminary injunction if, within the context of that controlling issue, they have “raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.” Jacobson, supra, 548 F.2d at 442. The NASL plaintiffs perceive two principal anticompetitive effects of the cross-ownership ban. First, they view the limited number of individuals in the United States with sufficient wealth, interest, time and entrepreneurial skills to operate a major sports franchise effectively as a decidedly limited market, of which the present NFL members constitute a significant part. Plaintiffs claim that the cross-ownership ban obstructs the NASL from competing in that market, since under its terms present cross-owners are under pressure to divest themselves of NASL franchises, and new prospects cannot be approached if they are NFL owners, present or potential. Secondly, plaintiffs argue, this anticompetitive effect leads directly to another, since the coercions and restraints placed upon present and potential NASL owners serve to “undermine" }, { "docid": "3298860", "title": "", "text": "a balancing of alleged anticompetitive and procompetitive effects of a challenged practice in every definable market. The issue of defining the proper scope of a rule of reason analysis is a deceptive body of water, containing unforeseen currents and turbulence lying just below the surface of an otherwise calm and peaceful ocean. The waters are muddied by the Supreme Court’s decision in NCAA—one of the more extensive examples of the Court performing a rule of reason analysis—where the Court considered the value of certain procompetitive effects that existed outside of the relevant market in which the restraint operated. NCAA 468 U.S. at 115-20, 104 S.Ct. at 2967-70 (considering the NCAA’s interest in protecting live attendance at untelevised games and the NCAA’s “legitimate and important” interest in maintaining competitive balance between amateur athletic teams as a justification for a restraint that operated in a completely different market, the market for the telecasting of collegiate football games). Other courts have demonstrated similar confusion. See, e.g., L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399 (stating that the “relevant market provides the basis on which to balance competitive harms and benefits of the restraint at issue” but then considering a wide variety of alleged benefits, and then directing the finder of fact to “balance the gain to interbrand competition against the loss of intrabrand competition”, where the two types of competition operated in different markets). To our knowledge, no authority has squarely addressed this issue. On the one hand, several courts have expressed concern over the use of wide ranging interests to justify an otherwise anticompetitive practice, and others have found particular justifications to be incomparable and not in correlation with the alleged restraint of trade. Smith v. Pro Football, Inc., 593 F.2d 1173, 1186 (D.C.Cir.1978); Brown v. Pro Football Inc., 812 F.Supp. 237, 238 (D.D.C.1992); Chicago Pro. Sports Ltd. Partnership v. Nation al Basketball Ass’n, 754 F.Supp. 1336, 1358 (N.D.Ill.1991). We agree that the ultimate question under the rule of reason is whether a challenged practice promotes or suppresses competition. Thus, it seems improper to validate a practice that is decidedly in" }, { "docid": "7968406", "title": "", "text": "determines that a practice is illegal per se, no examination of the practice’s impact on the market or the procompetitive justifications for the practice is necessary for finding a violation of antitrust law. Id. The rule of reason, however, requires a court to analyze the history of the restraint and the restraint’s effect on competition. Id.; see Smith v. Pro Football, Inc., 593 F.2d 1173, 1183 (D.C.Cir.1978). The rule of reason analysis employs a burden-shifting framework. See California Dental Ass’n v. FTC, 526 U.S. 756, 775 n. 12, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999). First, the plaintiff must establish that the restraint produces significant anticompetitive effects within the relevant product and geographic markets. See Tanaka v. Univ. of Southern Cal., 252 F.3d 1059, 1063 (9th Cir.2001). “If the plaintiff meets this burden, the defendant must come forward with evidence of the restraint’s procompetitive effects” to establish that the alleged conduct justifies the otherwise anticompetitive injuries. Id.; see also United States v. Brown Univ., 5 F.3d 658, 666-69 (3d Cir.1993). If the defendant is able to demonstrate procompetitive effects, the plaintiff then must show that any legitimate objectives can be achieved in a substantially less restrictive manner. Law, 134 F.3d at 1019. The Supreme Court has stated that the per se rule is a “demanding” standard that should be applied only in clear cut cases. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); accord Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 178, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965) (finding that “the area of per se illegality is carefully limited.”). Therefore, “courts consistently have analyzed challenged conduct under the rule of reason when dealing with an industry in which some horizontal restraints are necessary for the availability of a product” such as sports leagues. Law, 134 F.3d at 1019. Moreover, the Supreme Court has recognized that in cases involving industries “in which horizontal restraints on competition are essential if the product is to be available at all,” the rule of reason analysis should apply." }, { "docid": "5781116", "title": "", "text": "relevant facts. This is not because a good intention will save an otherwise objectionable regulation, or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. 246 U.S. at 238, 38 S.Ct. at 244 (emphasis added). The entire thrust of the Sherman Act is to set out a broad mandate, to be given shape and content by the judiciary. See 435 U.S. at 690, 98 S.Ct. 1355. Just as mere categorization of particular combinations as per se illegal results in “an unintended and undesirable rigidity in the law,” Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 50 n.16, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568 (1977), a wooden balancing approach under the Rule of Reason without regard to the factors listed in Chicago Board of Trade can lead to the same kind of “rigidity” condemned by the Court in Continental T.V. The majority opinion states that the purpose of Rule of Reason analysis is to determine whether a restraint “is significantly anticompetitive in purpose or effect.” Maj. Op. at-of 193 U.S.App.D.C., at 1183 of 593 F.2d. The majority agree that to make this evaluation the court must analyze “the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed,” as required by Engineers. Then, the majority set forth the following rule: If, on analysis, the restraint is found to have legitimate business purposes whose realization serves to promote competition, the “anticompetitive evils” of the challenged practice must be carefully balanced against the “procompetitive virtues” to ascertain whether the former outweigh the latter. A restraint is unreasonable if it has the “net effect” of substantially impeding competition. Maj. Op. at - of 193 U.S.App.D.C., at 1183 of 593 F.2d. Later in the opinion, the majority elaborate on this rule: [A] player draft can survive scrutiny under the rule of reason only if it is demonstrated to have positive, economically procompetitive benefits that offset its anticompetitive effects, or, at the least, if it is demonstrated to accomplish legitimate business purposes and to have a net" }, { "docid": "12907646", "title": "", "text": "competitors in the Georgia market have accomplished through their written agreement and subsequent actions what the antitrust laws were designed to prevent: injury to the consumer. The evidence establishes that the 1980 agreement between BRG and HBJ is per se illegal under binding Supreme Court prece dent. The written agreement has the effect of reducing price competition in Georgia and markets into which BRG might have otherwise entered absent the agreement. The agreement also has no redeeming procompetitive virtues. Thus, the trial court erred by too narrowly construing the rule against horizontal price fixing and should have condemned the defendants’ agreement as being per se illegal. IV. Rule of Reason Claim Although the 1980 agreement is a per se violation, the plaintiffs may also show that the 1980 agreement and its subsequent 1982 modifications violate the rule of reason. The district court found that neither the 1980 nor the reformulated 1982 agreements violated the rule of reason because the plaintiffs failed to demonstrate any actual anticompetitive effects. The district court erred in its findings and also failed to apply the proper analysis under the rule of reason. Under the rule of reason, a “factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1978). Although the rule of reason will often require a careful balancing of a challenged restraint’s harms, benefits, and alternatives, a court can readily condemn a challenged restraint on summary judgment when the restraint directly limits competition on price or output and has no procompetitive justification. P. Areeda, Antitrust Law, ÍÍ1508, at 403 (1986); see also NCAA, 468 U.S. at 109, 104 S.Ct. at 2964. Under the rule of reason, a sliding scale has developed which permits antitrust plaintiffs to demonstrate a lower threshold level of anticompetitive effect the more egregious the defendants’ challenged practice or restraint. A demonstration of anticompetitive effect or market power, however, may not be necessary in cases where the" }, { "docid": "4185655", "title": "", "text": "IV 1986). Discussion I. Sherman Act Count Federal alleges a violation of section 1 of the Sherman Act, which provides in relevant part: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. 15 U.S.C. § 1 (1982). Defendants assert that Federal has failed to state a claim under section 1 of the Sherman Act. In particular, they argue that Federal has failed to plead a per se violation of the act or an injury to competition, and that it has inadequately alleged a relevant market or a conspiracy. Although section 1 of the Sherman Act on its face prohibits every restraint of trade, the Supreme Court has long held that section 1 prohibits only unreasonable restraints on trade. See Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). “[A] restraint may be adjudged unreason able either because it fits within a class of restraints that has been held to be ‘per se ’ unreasonable, or because it violates what has come to be known as the ‘Rule of Reason’....” Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 457-58, 106 S.Ct. 2009, 2017, 90 L.Ed.2d 445 (1986). Under the rule of reason, “the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T.V., 433 U.S. at 49, 97 S.Ct. at 2557. A particular restraint on trade is unreasonable if its anticompetitive effects outweigh its procompetitive effects. International Distribution Centers, Inc. v. Walsh Trucking Co., 812 F.2d 786, 793 (2d Cir.), cert. denied, — U.S.-, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). Some forms of conduct, however, “because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. The principle of" }, { "docid": "23073073", "title": "", "text": "operation of two teams, there would be no scheduling difficulties, facilities at the L.A. Coliseum are more than adequate, and no loss of future television revenue was foreseen. Also, the NFL offered no evidence that its interest in maintaining regional balance would be adversely affected by a move of a northern California team to southern California. It is true, as the NFL claims, that the antitrust laws are primarily concerned with the promotion of interbrand competition. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 51, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568, 581, n. 19 (1977). To the extent the NFL is a product which competes with other forms of entertainment, including other sports, its rules governing territorial division can be said to promote inter-brand competition. Under this analysis, the territorial allocations most directly suppress intrabrand, that is, NFL team versus NFL team, competition. A more direct impact on intrabrand competition does not mean, however, the restraint is reasonable. The finder of fact must still balance the gain to interbrand competition against the loss of intrabrand competition. See id., at 51-56, 97 S.Ct. at 2558-2560. Here, the jury could have found that the rules restricting team movement do not sufficiently promote in-terbrand competition to justify the negative impact on intrabrand competition. To withstand antitrust scrutiny, restrictions on team movement should be more closely tailored to serve the needs inherent in producing the NFL “product” and competing with other forms of entertainment. An express recognition and consideration of those objective factors espoused by the NFL as important, such as population, economic projections, facilities, regional balance, etc., would be well advised. See L. Kurlantzick, Thoughts on Professional Sports and the Antitrust Laws, 15 Conn. L.R. 183, 206 (1983). Fan loyalty and location continuity could also be considered. Id. at 206-207. Al Davis in fact testified that in 1978 he proposed that the League adopt a set of objective guidelines to govern team relocation rather than continuing to utilize a subjective voting procedure. Some sort of procedural mechanism to ensure consideration of all the above factors may also be necessary, including" }, { "docid": "12907647", "title": "", "text": "also failed to apply the proper analysis under the rule of reason. Under the rule of reason, a “factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1978). Although the rule of reason will often require a careful balancing of a challenged restraint’s harms, benefits, and alternatives, a court can readily condemn a challenged restraint on summary judgment when the restraint directly limits competition on price or output and has no procompetitive justification. P. Areeda, Antitrust Law, ÍÍ1508, at 403 (1986); see also NCAA, 468 U.S. at 109, 104 S.Ct. at 2964. Under the rule of reason, a sliding scale has developed which permits antitrust plaintiffs to demonstrate a lower threshold level of anticompetitive effect the more egregious the defendants’ challenged practice or restraint. A demonstration of anticompetitive effect or market power, however, may not be necessary in cases where the challenged restraints are sufficiently “naked” in the sense that they directly restrain price or output. A. The Rule of Reason Under Indiana Federation of Dentists Under the rule of reason as enunciated in FTC v. Indiana Federation of Dentists, 476 U.S. 447, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986), the plaintiffs in this action can demonstrate an antitrust violation in one of two ways. The first requires that the plaintiffs demonstrate that the 1980 agreement between BRG and HBJ imposed a “naked\" restriction on output or price; in this instance, the plaintiffs would not have to define a relevant market or show market power. BRG and HBJ, however, would have to provide a countervailing proeom-petitive virtue to avoid liability. Under the second method, if the agreement is not sufficiently “naked,” the plaintiffs can show actual detrimental effects, such as a reduction of output or increased price, instead of an inquiry into market power. B. BRG-HBJ Agreement is a “Naked” Restraint Under the first method, the 1980 BRG-HBJ agreement is a blatant “naked” restriction on output" }, { "docid": "3298861", "title": "", "text": "“relevant market provides the basis on which to balance competitive harms and benefits of the restraint at issue” but then considering a wide variety of alleged benefits, and then directing the finder of fact to “balance the gain to interbrand competition against the loss of intrabrand competition”, where the two types of competition operated in different markets). To our knowledge, no authority has squarely addressed this issue. On the one hand, several courts have expressed concern over the use of wide ranging interests to justify an otherwise anticompetitive practice, and others have found particular justifications to be incomparable and not in correlation with the alleged restraint of trade. Smith v. Pro Football, Inc., 593 F.2d 1173, 1186 (D.C.Cir.1978); Brown v. Pro Football Inc., 812 F.Supp. 237, 238 (D.D.C.1992); Chicago Pro. Sports Ltd. Partnership v. Nation al Basketball Ass’n, 754 F.Supp. 1336, 1358 (N.D.Ill.1991). We agree that the ultimate question under the rule of reason is whether a challenged practice promotes or suppresses competition. Thus, it seems improper to validate a practice that is decidedly in restraint of trade simply because the practice produces some unrelated benefits to competition in another market. On the other hand, several courts, including this Circuit, have found it appropriate in some cases to balance the anticompetitive effects on competition in one market with certain procompetitive benefits in other markets. See, e.g., NCAA, 468 U.S. at 115-20, 104 S.Ct. at 2967-70; Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 799 (1st Cir.1988); M & H Tire Co. v. Hoosier Racing Tire Corp., 733 F.2d 973, 986 (1st Cir.1984); L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399. Moreover, the district court’s argument that it would be impossible to compare the procompetitive effects of the NFL’s policy in the mferbrand market of competition between the NFL and other forms of entertainment, with the anticompetitive effects of the mirabrand market of competition between NFL teams for the sale of their ownership interests, is arguably refuted by the Supreme Court’s holding in Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53" }, { "docid": "23073072", "title": "", "text": "392, 47 S.Ct. 377, 71 L.Ed. 700 (1927). The present case is in fact a good example of how the market itself will deter unwise moves, since a team will not lightly give up an established base of support to confront another team in its home market. The NFL’s professed interest in ensuring that cities and other local governments secure a return on their investment in stadia is undercut in two ways. First, the local governments ought to be able to protect their investment through the leases they negotiate with the teams for the use of their stadia. Second, the NFL’s interest on this point may not be as important as it would have us believe because the League has in the past allowed teams to threaten a transfer to another location in order to give the team leverage in lease negotiations. Finally, the NFL made no showing that the transfer of the Raiders to Los Angeles would have any harmful effect on the League. Los Angeles is a market large enough for the successful operation of two teams, there would be no scheduling difficulties, facilities at the L.A. Coliseum are more than adequate, and no loss of future television revenue was foreseen. Also, the NFL offered no evidence that its interest in maintaining regional balance would be adversely affected by a move of a northern California team to southern California. It is true, as the NFL claims, that the antitrust laws are primarily concerned with the promotion of interbrand competition. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 51, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568, 581, n. 19 (1977). To the extent the NFL is a product which competes with other forms of entertainment, including other sports, its rules governing territorial division can be said to promote inter-brand competition. Under this analysis, the territorial allocations most directly suppress intrabrand, that is, NFL team versus NFL team, competition. A more direct impact on intrabrand competition does not mean, however, the restraint is reasonable. The finder of fact must still balance the gain to interbrand competition against the" }, { "docid": "4438591", "title": "", "text": "the individual games. Under the plan, ABC, CBS, and Turner share the exclusive right to broadcast NCAA football. The grant of exclusivity restricts the buyers to whom schools may sell and prevents other broadcasters from purchasing broadcast rights. In connection with the exclusive rights the NCAA established a price — the minimum aggregate compensation fee. Both the grant of exclusivity and the setting of the minimum aggregate compensation price appear anti-competitive: exclusivity creates the risk of foreclosure of competition and price setting implicates monopoly power. The NCAA attempted to prove that the exclusive franchise restraints were necessary to penetrate the network programming market. The NCAA asserts that the restraints permit college football to be promoted as a series, like “Dallas” or “M*A*S*H,” in competition with other television programming. In essence, the NCAA is arguing that the plan restrains intrabrand competition (competition among football games) in order to stimulate inter-brand competition (competition between NCAA football and other entertainment programming). Stimulating interbrand competition at the expense of intrabrand competition is potentially procompetitive. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 51-57, 97 S.Ct. 2549, 2558-61, 53 L.Ed.2d 568 (1977). It can result in a more vigorous marketing of the product, facilitating market penetration and increasing market share. Because the marketing integration could increase interbrand competition, the NCAA argues that the integration and its accompanying restraints should be assessed under the rule of reason. Whether stimulating interbrand competition by restraining intrabrand competition is procompetitive depends in part on the nature of the interbrand product market. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19; ABA Section of Antitrust Law, Vertical Restrictions Limiting Intrabrand Competition 60-71 (Monograph No. 2, 1977). Therefore, it is difficult to assess the validity of the NCAA’s argument without getting into the. “enormous complexities of market definition that the per se rule seeks to avoid.” R. Bork, The Antitrust Paradox 269. Broadcast Music makes clear that in assessing the facial validity of an integration, courts are not to engage in rule of reason analysis. 441 U.S. at 19" }, { "docid": "3298859", "title": "", "text": "a practice that allegedly violates the antitrust laws. Monahan’s Marine, 866 F.2d at 526. The district court instructed the jury on its verdict form to balance the injury to competition in the relevant market with the benefits to competition in that same relevant market. The NFL protested, claiming that all procompetitive effects of its policy, even those in a market different from that in which the alleged restraint operated, should be considered. The NFL’s case was premised on the claim that its policy against public ownership was an important part of the effective functioning of the league as a joint venture. Although it was not readily apparent that this beneficial effect applied to the market for ownership interests in NFL teams, the relevant market found by the jury, the NFL argued that its justification should necessarily be weighed by the jury under the rule of reason analysis. Sullivan responded, and the district court agreed, that a jury cannot be asked to compare what are essentially apples and oranges, and that it is impossible to conduct a balancing of alleged anticompetitive and procompetitive effects of a challenged practice in every definable market. The issue of defining the proper scope of a rule of reason analysis is a deceptive body of water, containing unforeseen currents and turbulence lying just below the surface of an otherwise calm and peaceful ocean. The waters are muddied by the Supreme Court’s decision in NCAA—one of the more extensive examples of the Court performing a rule of reason analysis—where the Court considered the value of certain procompetitive effects that existed outside of the relevant market in which the restraint operated. NCAA 468 U.S. at 115-20, 104 S.Ct. at 2967-70 (considering the NCAA’s interest in protecting live attendance at untelevised games and the NCAA’s “legitimate and important” interest in maintaining competitive balance between amateur athletic teams as a justification for a restraint that operated in a completely different market, the market for the telecasting of collegiate football games). Other courts have demonstrated similar confusion. See, e.g., L.A. Coliseum, 726 F.2d at 1381, 1392, 1397, 1399 (stating that the" }, { "docid": "23123246", "title": "", "text": "at 668. The plaintiff may satisfy this burden by proving the existence of actual anticompetitive effects, such as reduction of output, increase in price, or deterioration in quality of goods and services. Id. Due to the difficulty of isolating the market effects of the challenged conduct, however, such proof is often impossible to make. Id. Accordingly, the courts allow proof of the defendant’s “market power” instead. Id. Market power — the ability to raise prices above those that would prevail in a competitive market — is essentially a “ ‘surrogate for detrimental effects.’ ” Id. at 668-69 (quoting FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 460-61, 106 S.Ct. 2009, 2019, 90 L.Ed.2d 445 (1986)). If a plaintiff meets his initial burden of adducing adequate evidence of market power or actual anticompetitive effects, the burden shifts to the defendant to show that the challenged conduct promotes a sufficiently pro-competitive objective. Id. at 669. To rebut, the plaintiff must demonstrate that the restraint is not reasonably necessary to achieve the stated objective. Id. Agreements between entities at different market levels are termed “vertical restraints.” See United States v. Topco Assocs., Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972). The Supreme Court has instructed that vertical restraints of trade, which do not present an express or implied agreement to set resale prices, are evaluated under the rule of reason. Business Elec. Corp., 485 U.S. at 724, 108 S.Ct. at 1519-20; see also Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme Court has also repeatedly confirmed in vertical restraint cases that interbrand competition, as opposed to intrabrand competition, is the primary goal of the antitrust laws. Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 722-23 (3d Cir.1991) (citing Business Elecs. Corp., 485 U.S. 717, 108 S.Ct. 1515, and Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), and GTE Sylvania, 433 U.S. at 36, 97 S.Ct. at 2550), cert. denied, 505 U.S. 1221, 112 S.Ct. 3034, 120" }, { "docid": "7220271", "title": "", "text": "ban. Indeed, it is irrelevant to that ban, which is designed to restrain competition by NASL teams against NFL teams, not competition between NFL teams. Bearing in mind the Supreme Court’s admonition in Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977), that “[p]er se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive,” we are not prepared, by using “the tyranny of tags and tickets,” Cardozo, Mr. Justice Holmes, 44 Harv.L.Rev. 682, 688 (1931), to label league cross-ownership bans automatically unlawful regardless of their effects. As the arguments advanced by the NFL indicate, circumstances could exist that might justify a ban by a weak league as necessary to protect it against serious competitive harm by a cross-owner who threatened to misuse his position in that league to favor a stronger competing league and its members. Under those circumstances a ban “might survive scrutiny under the Rule of Reason even though [it] would be viewed as a violation of the Sherman Act in another context,” National Society of Professional Engineers v. United States, supra, 435 U.S. at 686, 98 S.Ct. at 1362. Because agreements between members of a joint venture can under some circumstances have legitimate purposes as well as anticompetitive effects, they are subject to scrutiny under the rules of reason. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); United States v. Addyston Pipe & Steel Co., 85 Fed. 271 (6th Cir. 1898). This entails an inquiry into “whether the challenged agreement is one that promotes competition or one that suppresses competition,” National Society of Professional Engineers v. United States, supra, 435 U.S. at 691, 98 S.Ct. at 1365, that is, whether the procompetitive effects of this restraint outweigh the anti-competitive effects. As we stated in Eiberger v. Sony Corp. of America, 622 F.2d 1068, 1076 (2d Cir. 1980) (quoting Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918)), “The true test of legality is" } ]

[ { "docid": "22953510", "title": "", "text": "PER CURIAM: Claimants appeal from a judgment for forfeiture against their. 1978 Chevrolet Impala under 21 U.S.C.A. § 881 and 49 U.S.C.A. § 782. We affirm. At the trial, the Government presented evidence showing that the vehicle was employed in transporting phenyl-2-propanone (P-2-P) used in the manufacture of methaphetamine. While methaphetamine is a controlled substance and thus contraband, P-2-P is not. 21 U.S.C.A. § 812; 49 U.S.C.A. § 781(b)(1). Claimants presented no evidence at the close of the Government’s case. When the Government’s evidence in a forfeiture proceeding under these statutes is uncontradicted, the scope of the inquiry on appeal is whether the Government’s evidence established probable cause for the institution of the suit. See United States v. One 1971 Chevrolet Corvette, 496 F.2d 210 (5th Cir. 1974). The probable cause necessary here is a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion. United States v. One 1975 Ford Pickup Truck, 558 F.2d 755 (5th Cir. 1977); United States v. One 1971 Chevrolet Corvette, 496 F.2d at 212; Bush v. United States, 389 F.2d 485 (5th Cir. 1968). 21 U.S.C.A. § 881(a)(4) subjects to forfeiture any vehicle, which is used or intended for use to transport any controlled substance or any raw material, product, or equipment used or intended for use in manufacturing any controlled substance. Thus the fact that the goods transported could be used in a legitimate business does not prevent a forfeiture. Cf. Utley Wholesale Co. v. United States, 308 F.2d 157 (5th Cir. 1962) (forfeiture of a tractor trailer and 300 sacks of sugar under 26 U.S.C.A. § 7301); United States v. Bryan, 265 F.2d 698 (5th Cir. 1959) (forfeiture of tow truck under same statute). The district court’s finding that the vehicle was used to transport P— 2-P to be used for the purpose of making methaphetamine, a controlled substance, is sufficient to establish the probable cause necessary to sustain the forfeiture. That finding is not clearly erroneous. The district court correctly applied 21 U.S.C.A. § 881. The forfeiture was also proper under 49 U.S.C.A." } ]

[ { "docid": "1421330", "title": "", "text": "803 F.2d 625, 628 (11th Cir.1986). In presenting its case, the government is permitted to present otherwise inadmissible hearsay evidence. Id. at 629 n. 2. Once probable cause is established, the burden shifts to the claimant to prove by a preponderance of the evidence a defense to the forfeiture. United States v. 15603 8th Avenue North, Lake Park, 933 F.2d 976, 979 (11th Cir.1991). It is a “statutory requirement” that the claimant, and not the government, bear the burden of proving an innocent owner defense. 19 U.S.C. § 1615; United States v. Four Million Two Hundred Fifty-five Thousand Dollars, 162 F.2d 895, 906-07 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986). The question of whether a claimant has sufficiently established an innocent owner defense is a question of fact to be determined by the fact finder. United States v. 5000 Palmetto Drive, 928 F.2d 373 (11th Cir.1991); United States v. Hayes, 943 F.2d 1292 (11th Cir.1991). VII. BIFURCATION Because the government is permitted to use hearsay evidence to prove its probable cause case to the court, A Single Family Residence, 803 F.2d at 629, n. 2, an issue arises concerning the propriety of allowing the jury to overhear this evidence. Usually, this situation is easily resolved because forfeiture cases are typically tried as bench trials, making it relatively easy for the judge as factfinder to sort out the hearsay evidence from the admissible evidence before making a factual determination. In the instant case, a potential for prejudice arose because Chang exercised his right to a jury trial. In an attempt to avoid such prejudice, claimant Chang asked the district court to bifurcate the trial into a) a bench trial to determine probable cause and b) a subsequent jury trial on the issue of the innocent owner defense. The trial judge refused the request, reasoning that it would not “make any sense at all to let the defendant go forward with proof, and disprove something not at issue.” By allowing the government to present hearsay evidence before the jury, the court committed reversible error. A." }, { "docid": "23199183", "title": "", "text": "forfeiture does not fall within the four corners of the statute. Id. (citing United States v. One 1977 Chevrolet Pickup, Etc., 503 F.Supp. 1027 (D.Colo.1980)); see also United States v. $3,799.00 in United States Currency, 684 F.2d 674, 676 (10th Cir.1982). If no such rebuttal is made, a showing of probable cause alone will support a judgment of forfeiture. United States v. One 1980 Red Ferrari, 875 F.2d 186, 188 (8th Cir.1989). As stated previously, the government sought forfeiture pursuant to several statutory provisions, 21 U.S.C. § 881(a)(4) and (a)(6); 26 U.S.C. §§ 7301(a) and 7302; and 18 U.S.C. § 1955. The test for determining probable cause for forfeiture purposes is the same as applies in arrests, searches and seizures. Accordingly, the government must demonstrate a reasonable ground for belief of guilt supported by less than prima facie proof, but more than mere suspicion. See Walker, 900 F.2d at 1204; United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980); United States v. One 1975 Ford F100 Pickup Truck, 558 F.2d 755, 756 (5th Cir.1977). “Circumstantial evi dence of drug transactions may support the establishment of probable cause.” Padilla, 888 F.2d at 644. However, the presence or absence of any single factor is not dis-positive. United States v. United States Currency, $83,310.78, 851 F.2d 1231, 1236 (9th Cir.1988). Once probable cause for forfeiture has been established, claimants may recover the defendant property only by establishing a defense to forfeiture by a preponderance of the evidence. We conclude that the government established probable cause to believe that the defendant property was either proceeds of or was used to facilitate drug trafficking. The unusually large amount of hidden currency, the presence of drug paraphernalia, including packaging supplies and drug notations reflecting large drug transactions, establishes a sufficient nexus between the defendant property and claimant Fisher’s involvement in drug trafficking. While we recognize that a large amount of hidden currency in itself is not enough to establish that the money was furnished or was intended to be furnished in return for drugs, this evidence is strong evidence of such an" }, { "docid": "2637107", "title": "", "text": "moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance ....” In actions brought under this section, the government must show probable cause for the belief that a substantial connection exists between the property forfeited and the criminal activity defined by the statute. Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986). The definition of probable cause applicable here is the same as that which applies elsewhere: “reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” United States v. $364,960 In U.S. Currency, 661 F.2d 319, 323 (5th Cir. Unit B 1981). “Under the substantial connection test, the property either must be used or intended to be used to commit a crime, or must facilitate the commission of a crime. At minimum, the property must have more than an incidental or fortuitous connection to criminal activity.” United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.1990). Once the government meets the showing of probable cause, the burden of proof shifts to the claimant to establish, by a preponderance of the evidence, that the property was not used in violation of the law or was not intended to be used unlawfully. Boas, 786 F.2d at 609. Applying the judicially developed probable cause and substantial connection tests to the facts at hand, there is little doubt that the government properly met its initial burden regarding probable cause. With the help of Agent Kearney’s affidavit, the government demonstrated the following in support of its motion: that undercover officer Kearney arranged a sale of six kilo grams of cocaine; that Baxter produced an exceptional amount of cash in small bills, which was represented to be the consideration for the drugs, to his companion, who had arranged the sale; and that this companion gave the bills (contained in a bowling bag) to Kearney, a total stranger. Given that Baxter had little income and no bank account, and advanced no reason for why he would be carrying such a large amount of money in a bowling bag, the government has" }, { "docid": "6616791", "title": "", "text": "all reasonable inferences to be drawn from the facts.” Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990). Summary judgment is appropriate only if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Mandel v. United States, 719 F.2d 963, 965 (8th Cir.1983). In the context of a civil forfeiture proceeding, the government carries the initial burden of establishing probable cause; that is, it must “establish only that reasonable grounds exist to believe that the [property was] used or intended to be used for prohibited purposes.” One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 761 (8th Cir.1986). The necessary level of proof is greater than mere suspicion, but is less than prima facie proof. United States v. Premises Known as 3639-2nd Street N.E., 869 F.2d 1093, 1095 (8th Cir. 1989). Once the government meets this burden, “the burden shifts to the party opposing forfeiture to demonstrate by a preponderance of the evidence that the property is not subject to forfeiture or that a defense to forfeiture is applicable.” Id. The claimant cannot meet this burden by simply resting on his or her pleadings; instead, the claimant “must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial.” One Blue 1977 AMC Jeep, 783 F.2d at 762. “If unrebutted, a showing of probable cause alone will support forfeiture.” Id. at 761. In the present case, the government met its initial burden. The affidavit offered to support the summary judgment motion demonstrated reasonable grounds to believe both the mobile home and the body shop were used to facilitate illegal drug activity. The body shop was used as a place to meet a prospective customer, conduct negotiations, and complete a drug transaction. The affidavit also tends to support the inference that the mobile home was used as a place to store drugs. The character of these activities constitutes a sufficient connection with the prohibited conduct to enable the government to meet its initial burden. Thus, the burden" }, { "docid": "23592825", "title": "", "text": "to this section, the government has the initial burden of demonstrating “probable cause for the belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statute.” Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986) (quoting United States v. $364,960 in United States Currency, 661 F.2d 319, 323 (5th Cir.1981)). See 21 U.S.C. § 881(d); 19 U.S.C. § 1615. The burden then shifts to the claimant to establish, by a preponderance of the evidence, that the property was not acquired in violation of the law or otherwise linked to illegal drug activity. See Boas, 786 F.2d at 609. If upon rebuttal the claimant is unable to demonstrate that the property was not involved with drug activity, \"a showing of probable cause alone will support a judgment of forfeiture.” United States v. One 1980 Red Ferrari, 875 F.2d 186, 188 (8th Cir.1989). “Probable cause” for the purpose of forfeiture proceedings is the same standard used in search and seizure cases. See id.; United States v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir.1978). It requires the court to “make a practical, common-sense decision whether, given all the circumstances set forth ... including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability” that the properties to be forfeited are proceeds of illegal drug transactions. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). “[DJirect connection between the property subject to seizure and the illegal activity that renders the items for-feitable need not be shown in order to establish probable cause.” United States v. Edwards, 885 F.2d 377, 390 (7th Cir.1989). Rather, “where a defendant’s verifiable income cannot possibly account for the level of wealth displayed and where there is strong evidence that the defendant is a drug trafficker, then there is probable cause to believe that the wealth is either a direct product of the illicit activity or that it is traceable to the activity as proceeds.” Id. at 390. III. Despite findings of fact as to Thomas’ criminal" }, { "docid": "1421329", "title": "", "text": "Co., 416 U.S. 663, 689-690, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974). Accordingly, courts must cautiously balance the government’s strong desire to eradicate illicit drug trafficking against constitutional guarantees of individual rights. VI.PROCEDURE The structure of a section 881 forfeiture proceeding is well settled by statute and case law. First, a claimant must establish standing as an owner of the contested property. United States v. Certain Real Property, 724 F.Supp. 908, 913 (S.D.Fla.1989). In this case, claimant’s ownership is uncontested. Once a claimant has established standing, the burden shifts to the government to prove probable cause for the institution of the forfeiture action. 19 U.S.C. § 1615; United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426 (11th Cir.1983). The trial court bears the responsibility for determining whether the government has proven probable cause. 19 U.S.C. § 1615. The government must convince the judge that it had a “reasonable ground for belief of guilt, supported by less than prima facie proof, but more than reasonable suspicion.” United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986). In presenting its case, the government is permitted to present otherwise inadmissible hearsay evidence. Id. at 629 n. 2. Once probable cause is established, the burden shifts to the claimant to prove by a preponderance of the evidence a defense to the forfeiture. United States v. 15603 8th Avenue North, Lake Park, 933 F.2d 976, 979 (11th Cir.1991). It is a “statutory requirement” that the claimant, and not the government, bear the burden of proving an innocent owner defense. 19 U.S.C. § 1615; United States v. Four Million Two Hundred Fifty-five Thousand Dollars, 162 F.2d 895, 906-07 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986). The question of whether a claimant has sufficiently established an innocent owner defense is a question of fact to be determined by the fact finder. United States v. 5000 Palmetto Drive, 928 F.2d 373 (11th Cir.1991); United States v. Hayes, 943 F.2d 1292 (11th Cir.1991). VII. BIFURCATION Because the government is permitted to use hearsay evidence to prove" }, { "docid": "12981508", "title": "", "text": "for summary judgment, the government never squarely addressed the argument that the parcels should be severed for forfeiture purposes. On appeal, Bo-ehnewych does not ask us to decide this issue, but only asks that the case be remanded for a trial on the issue. The government urges us to affirm the district court’s grant of summary judgment in its favor. 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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The forfeiture statute broadly states that “[a]ll real property, including any right, title, and interest in the whole of any lot or tract of land ,.. which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of’ a drug offense is forfeitable. 21 U.S.C. § 881(a)(7). In a civil forfeiture proceeding under the law in effect at the time of this forfeiture, the government must show probable cause that the property is subject to forfeiture. Once the government has made this showing, which has been defined as “reasonable grounds for belief of guilt, supported by less than prima facie proof but more than mere suspicion,” United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1434 (9th Cir. 1985), the burden shifts to the claimant to prove by a preponderance of the evidence that the property was not unlawfully used or that he did not know about or consent to the illegal use. See United States v. 7715 Betsy Bruce Lane, 906 F.2d 110 (4th Cir.1990). In this circuit, we consider property forfeitable if its" }, { "docid": "16121700", "title": "", "text": "established that Roberts used the defendant property to facilitate illegal drug transactions. II. DISCUSSION We do not reach Roberts’ argument concerning the district court’s application of collateral estoppel as his failure to respond to the government’s requests for admissions conclusively established the government’s case. A basic review of federal civil forfeiture and procedural law exposes the weakness of Roberts’ argument (as a bright red herring), and leads to a simple resolution of this matter. The controlling civil forfeiture statute, 21 U.S.C. § 881(a)(7), provides that any right, title, or interest in real property is subject to forfeiture when it was used or intended to be used to commit or to facilitate the commission of any felony violation enumerated in Title 21 of the United States Code. Sections 841(a)(1) and 841(b)(1)(B) of Title 21 provide, in relevant part, that it is unlawful to distribute, dispense, or possess with intent to distribute or dispense, a controlled substance such as cocaine. In order to obtain a forfeiture, the government need only show probable cause that a substantial connection exists between the property identified for forfeiture and associated illegal drug activity. United States v. Four Million Two Hundred Fifty-Five Thousand Dollars, 762 F.2d 895, 903 (11th Cir. 1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986). Federal Rule of Civil Procedure 56(c) mandates entry of summary judgment “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.” (Emphasis added). The district court must view the evidence in the light most favorable to the nonmoving party. Sweat v. Miller Brewing, 708 F.2d 655, 656 (11th Cir.1983). Once the movant bears the initial burden of production in demonstrating no genuine issue of material fact, “the nonmoving party has the burden of making a showing sufficient to establish the existence of each essential element to the nonmovant’s case on which he will bear the burden of proof at trial.” Langston" }, { "docid": "22764125", "title": "", "text": "When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it “must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.” Id. at 331, 106 S.Ct. at 2557 (Brennan, J., dissenting); see also Chanel, Inc., 931 F.2d at 1477. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. See id. at 1477. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, “come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.” Id.; see also Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 331, 106 S.Ct. at 2557 (Brennan, J., dissenting). An understanding of the burdens of proof for civil forfeiture under section 881 is essential to the proper application of the summary judgment standard in this case. For property to be forfeit under section 881, the government first must show probable cause to forfeit the property. When the government has established probable cause, the burden of proof shifts to the claimant, who must show, by a preponderance of the evidence, that the property is not forfeit — for instance, that, despite the government’s showing of probable cause, the property was not acquired with the proceeds of an illegal drug transaction. See 19 U.S.C. § 1615 (1988); see also United States v. Single Family Residence & Real Property Located at 900 Rio Vista Blvd., 803 F.2d 625, 629 (11th Cir.1986); United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 904 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986) [hereinafter $4,255,000], If the claimant fails to meet this burden, the property is forfeit to the United States. Accordingly, when the government moves for summary judgment in a section 881 civil forfeiture action, the court first" }, { "docid": "23549948", "title": "", "text": "of going forward in a forfeiture proceeding, but it must establish only that reasonable grounds exist to believe that the vehicles were used or intended to be used for prohibited purposes. 21 U.S.C. § 881(b)(4). See, e.g., Carter v. Heckler, 712 F.2d 137 (5th Cir.1983). The property is subject to forfeiture if it was used “in any manner” to facilitate the sale, receipt, possession, or transportation of a controlled substance. 21 U.S.C. § 881(a)(4). Once the government shows that probable cause exists, the burden shifts to the claimant to demonstrate by a preponderance of the evidence that the property is not subject to forfeiture, or that a defense to forfeiture applies. See United States v. One 1972 Toyota Mark II, 505 F.2d 1162 (8th Cir.1974). See also Carter v. Heckler, 712 F.2d 137 (5th Cir.1983); United States v. One 1974 Porsche, 682 F.2d 283 (1st Cir.1982). If unrebutted, a showing of probable cause alone will support forfeiture. See Carter v. Heckler, 712 F.2d 137 (5th Cir.1983); United States v. One 1975 Ford, 558 F.2d 755, 756-57 (5th Cir.1977). In the instant case, the facts alleged in Battershell’s affidavit and corroborated by the tape and trial transcripts were sufficient to show probable cause. The record shows that reasonable grounds exist for believing that the vehicles were used in a manner which facilitated the transportation, sale, receipt, possession or concealment of a controlled substance. After probable cause was established by the government, the burden shifted to the Burnetts to show that the proper ty was not involved in the violation of the drug laws. Under Fed.R.Civ.P. 56(e), the Burnetts may not merely rest upon the denials in their pleadings, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. See Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981). Neither Burnett submitted any affidavits to controvert the facts upon which the probable cause showing relied. Nor did either invoke any of the statutory exceptions to forfeiture granted under 21 U.S.C. § 881. Rather, Ronald Burnett asserts that summary judgment was erroneously" }, { "docid": "9543367", "title": "", "text": "on the part of the government without impairing the vigor and flexibility of its litigating position.” Pullen v. Bowen, 820 F.2d 105, 107 (4th Cir.1987). Whether the government’s decision to initiate and to pursue forfeiture proceedings against B & M was reasonable must be examined in light of its burden under the appropriate statute. In order to secure forfeiture of property pursuant to 21 U.S. C. § 881, the government need only establish: “probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.” (citations omitted) ... Once the government meets the showing of probable cause, the burden of proof shifts to the claimant to establish, by a preponderance of the evidence, that the property was not used in violation of the law or was not intended to be used unlawfully. Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986). The fact that the government failed to achieve forfeiture of B & M raises no presumption that its position was not substantially justified. C.f. Ashburn v. United States, 740 F.2d 843, 849 (11th Cir.1984). If the record reveals that the government had any reasonable likelihood of prevailing in the action, then it would have been justified in pursuing a case against B & M. On that standard, we are fully satisfied that the government was acting in a reasonable fashion that precludes an award of fees under EAJA. After quashing the first clerk-issued seizure warrant, the district court conducted an adversarial proceeding and issued a second warrant, which included an express statement that the government had established probable cause to support the seizure. It is difficult to understand how the district court could later find the government’s position lacking in substantial justification when it had previously acknowledged that the government had satisfied the initial evidentiary burden of a full-scale forfeiture trial. In support of its fee award, the district court made certain findings of fact that recounted the procedural history of this litigation. Although the court did not expressly link its findings to the government’s allegedly unreasonable conduct," }, { "docid": "23210596", "title": "", "text": "actions is governed by the customs laws, 19 U.S.C. § 1615. Under 19 U.S.C. § 1615, the government first must establish probable cause to believe that the defendant property constitutes the proceeds of drug trafficking. Once probable cause is shown, the burden then shifts to the claimant to prove by a preponderance of the evidence that the property is not the proceeds of narcotics sales. See United States v. $250,000 in United States Currency, 808 F.2d 895, 897 (1st Cir.1987). To establish probable cause, the government must only show a “ ‘reasonable ground for belief of guilt; supported by less than prima facie proof but more than mere suspicion.’ ” Id. (quoting United States v. $364,960.00 in United States Currency, 661 F.2d 319, 323 (5th Cir. Unit B Nov. 1981)); see also United States v. $4,255,000, 762 F.2d 895, 903 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986); United States v. One 1974 Porsche 911-S, 682 F.2d 283, 285 (1st Cir.1982). This showing can be made with circumstantial evidence or evidence that would be inadmissible at trial, so long as the evidence is reliable. See United States v. $250,000, 808 F.2d at 899. Furthermore, the government need not trace the property to specific drug transactions. Rather, all that is required is that a court be able to look at the “aggregate” of the facts and find reasonable grounds to believe that the property probably was derived from drug transactions. See id. at 899-900; United States v. $41,305.00 in Currency and Traveler’s Checks, 802 F.2d 1339, 1343 (11th Cir.1986); United States v. $4,255,000, 762 F.2d at 904. The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws ... shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof.... In support of its motion for summary judgment below, the government assembled a considerable amount of evidence to establish its claim that the defendant" }, { "docid": "14207362", "title": "", "text": "entitled to judgment as a matter of law. E.g., First Wisconsin Trust Co. v. Schroud, 916 F.2d 394, 398 (7th Cir.1990); Fed.R.Civ.P. 56(c). Therefore, we will first examine the mechanics of the innocent owner defense and then apply those principles to the facts in this case. A. The Innocent Owner Defense Under section 881(a)(7), once the government establishes probable cause to believe that property was used to facilitate the distribution of controlled substances in violation of Title II of the Controlled Substances Act, the burden shifts to the claimant to prove by a preponderance of the evidence either that the property was not used to facilitate the alleged illegal activity or that the claimant was an innocent owner. E.g., United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990); United States v. 141st Street Corp. by Hersh, 911 F.2d 870, 876 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991) (citing cases); cf. United States v. Single Family Residence, 803 F.2d 625, 629 (11th Cir.1986) (forfeiture under 21 U.S.C. § 881(a)(6)); United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895 (11th Cir.), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1985) (an analogous provision, 21 U.S.C. § 881(a)(6), places the burden of establishing the innocent owner defense on the claimant). Rather than dispute that Harry III used the defendant property to facilitate his drug transactions, Modernaire seeks the protection section 881(a)(7) affords to innocent owners. To establish the innocent owner defense, the claimant must show by a preponderance of the evidence that the illegal activity took place on the property without the claimant’s knowledge or consent. E.g., United States v. One Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618, 626 (3d Cir.1989). Section 881(a)(7), however, harbors a latent ambiguity that has split the circuits. Some circuits hold that to avoid forfeiture a claimant must establish both lack of consent and lack of knowledge. Others hold that even if a claimant has actual knowledge, the claimant may avoid" }, { "docid": "23689275", "title": "", "text": "U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982). The Government then moved for summary judgment in the forfeiture proceeding. Ruppel contested the Government’s motion and filed a counter-motion for summary judgment, urging that the vessel was “unlawfully in the possession of a person other than the owner in violation of the criminal laws,” 21 U.S.C. § 881(a)(4)(B), and thus, that he had established a statutory defense to forfeiture. The District Court initially denied both motions, but later granted summary judgment of forfeiture in favor of the Government and denied the motion of Ruppel. Probable Cause The Government brings this forfeiture action pursuant to 19 U.S.C. § 1595a, 49 U.S.C. § 782, and 21 U.S.C. § 881(a)(4), among other statutes. In or der to obtain a forfeiture under 49 U.S.C. § 782 and 19 U.S.C. § 1595a, the Government must prove that the evidence establishes probable cause to believe that the vehicle was used to facilitate the transportation, concealment, or possession of the prohibited substance. United States v. One Mercury Cougar XR-7, 666 F.2d 228 (5th Cir.1982); United States v. One 1975 Ford Pickup Truck, etc., 558 F.2d 755 (5th Cir. 1977); United States v. One 1969 Buick, 493 F.2d 553 (5th Cir.1974). The probable cause necessary is “a reasonable ground for belief of guilt supported by less than prima facie proof but more than mere suspicion.” Mercury Cougar XR-7, 666 F.2d at 230 n. 3; Ford Pickup Truck, 558 F.2d at 756. The record contains evidence that more than satisfies the Government’s burden. Two crucial pieces of evidence are so strong that we need not review the remainder of the Government’s evidence. First, in Ruppel’s supplemental brief in support of his motion for summary judgment and in opposition to the Government’s motion for summary judgment, he declared: “party-in-interest has never denied either that the MONKEY was used to transport marijuana or that he purchased the MONKEY, neither of which acts contradicts his contention that he leased the MONKEY to Carlos Gerdes for shrimping purposes only.” F.R. Civ.P. 56(c) permits a court to consider any “admissions on file” in rendering" }, { "docid": "18811569", "title": "", "text": "but unconvincing, and I am not able to conclude that the money was actually physically tainted. 82. The taint that I do find is, then, a circumstantial conclusion based upon my factual findings in accordance with the preponderance of all the evidence. I note this so that any reviewing court may lose no time in finding the basis for my decision. Conclusions of Law 1. In a civil forfeiture proceeding pursuant to 21 U.S.C. § 881(a)(6), the government has the initial burden of showing “probable cause” to support its contention that the property was used illegally. 21 U.S.C. § 881(d); 19 U.S.C. § 1615; United States v. One 1975 Ford F-100 Pickup Truck, 558 F.2d 755 (5th Cir.1977). 2. Probable cause exists when the facts are of such a nature as to support a reasonable belief that a statute has been violated. United States v. One 1949 Pontiac Sedan, 194 F.2d 756, 759 (7th Cir.1952); Ted’s Motors v. United States, 217 F.2d 777 (8th Cir.1954). 3. In a civil forfeiture action pursuant to 21 U.S.C. § 881(a)(6), a direct or substantial connection between the property subject to forfeiture and the underlying criminal activity which that statute seeks to prevent may not be required if facts and circumstances would lead a reasonable fact finder to believe that a crime was committed and that the res subject to the forfeiture was connected with that commission. United States v. $364,960 in United States Currency, 661 F.2d 319 (5th Cir.1981). 4. If the government succeeds in demonstrating probable cause to the fact finder, the burden to then go forward with additional proof appears to shift, so that the claiming party then has the burden to show by a preponderance of the evidence that the property was not used illegally. 19 U.S.C. § 1615; 21 U.S.C. § 885; United States v. One 1969 Plymouth Fury, 476 F.2d 960 (5th Cir.1973); United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir. 1982); United States v. One 1975 Ford F-100 Pickup Truck, supra; United States v. $10,000 in United States Currency, 521 F.Supp. 1253" }, { "docid": "23592824", "title": "", "text": "trial on both cases. After the close of the government’s case on probable cause, the judge, with the consent of the parties, deferred a ruling on that issue and required claimants to present evidence that the property was not connected to illegal drug transactions. At the close of the evidence the district court ruled that the government had not shown probable cause for its belief that there was a substantial connection between the property to be forfeited and illegal, drug-related activities. The court ordered the return to Thomas of the confiscated property and the $25,000 cash bond. The government appeals. II. Title 21 U.S.C. § 881(a)(6) provides for forfeiture to the United States of [a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter. In forfeiture proceedings pursuant to this section, the government has the initial burden of demonstrating “probable cause for the belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statute.” Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986) (quoting United States v. $364,960 in United States Currency, 661 F.2d 319, 323 (5th Cir.1981)). See 21 U.S.C. § 881(d); 19 U.S.C. § 1615. The burden then shifts to the claimant to establish, by a preponderance of the evidence, that the property was not acquired in violation of the law or otherwise linked to illegal drug activity. See Boas, 786 F.2d at 609. If upon rebuttal the claimant is unable to demonstrate that the property was not involved with drug activity, \"a showing of probable cause alone will support a judgment of forfeiture.” United States v. One 1980 Red Ferrari, 875 F.2d 186, 188 (8th Cir.1989). “Probable cause” for the purpose of forfeiture proceedings is the same standard used in search and seizure cases. See id.; United States v. One 1975 Mercedes" }, { "docid": "1307291", "title": "", "text": "States v. Kemp, 690 F.2d 397, 401 (4th Cir.1982) (“probable cause to believe at the time of the seizure that the vehicle had been used in violation of the drug laws, and it must also be reasonable under the Fourth Amendment.”). Once the government meets the showing of probable cause, the burden of proof shifts to the claimant to establish, by a preponderance of the evidence, that the property was not used in violation of the law or was not intended to be used unlawfully. United States v. One 1975 Ford Pickup Truck, 558 F.2d 755 (5th Cir.1977). Applying the relevant statutes and the judicially developed probable cause test to the undisputed facts here requires the conclusion that the note was subject to forfeiture. The note secured by the deed of trust constitutes a forfeitable negotiable instrument under 21 U.S.C. § 881(a)(6). At least facially, it meets the requirements of a “negotiable instrument” under § 3-104 of the Uniform Commercial Code. The note obliges the borrowers to pay a sum certain at a time certain and to pay “on order,” and the note is not conditioned by its terms. That probable cause for seizure of this forfeitable item of property existed is also clear. The uncontroverted evidence revealed that Boas and Fuller used the note to induce agents “01son”-0’Leary and “Kennedy”-Twigg to invest in their illegal drug smuggling venture. The facts, therefore, clearly established the requisite probable cause to believe the note bore a substantial connection to the underlying drug smuggling conspiracy of which Boas and Fuller have now been convicted. Boas and Fuller have obviously failed to carry the burden of proving that the note was not used, nor intended to be used, in violation of the law. Instead, they have opposed the forfeiture only on the grounds of failure of consideration and illegality of the underlying agreement. These contentions, however, do not touch the narrow probable cause issue that is dispositive of the note’s forfeitability. We therefore hold, without more, that the note was forfeitable under the relevant statutes. Whether it has any legally enforceable value as forfeit" }, { "docid": "1307290", "title": "", "text": "881(b) then provides the methods by which the United States may obtain possession of forfeitable property. The government may either seize property “upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims ...,” id., or the government may seize without this process under four enumerated exceptions. The exception to the process requirement relied upon here, § 881(b)(4), provides for warrantless seizure if “the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter.” Id. To secure forfeiture of property under § 881(a)(6) and (b)(4), the government need only establish “probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.” United States v. $364,960 in United States Currency, 661 F.2d 319, 323 (5th Cir.1981); see also United States v. United States Currency $31,828, 760 F.2d 228 (8th Cir.1985) (the government’s initial burden is to show probable cause to believe that the property is “linked to the illegal activity”); United States v. Kemp, 690 F.2d 397, 401 (4th Cir.1982) (“probable cause to believe at the time of the seizure that the vehicle had been used in violation of the drug laws, and it must also be reasonable under the Fourth Amendment.”). Once the government meets the showing of probable cause, the burden of proof shifts to the claimant to establish, by a preponderance of the evidence, that the property was not used in violation of the law or was not intended to be used unlawfully. United States v. One 1975 Ford Pickup Truck, 558 F.2d 755 (5th Cir.1977). Applying the relevant statutes and the judicially developed probable cause test to the undisputed facts here requires the conclusion that the note was subject to forfeiture. The note secured by the deed of trust constitutes a forfeitable negotiable instrument under 21 U.S.C. § 881(a)(6). At least facially, it meets the requirements of a “negotiable instrument” under § 3-104 of the Uniform Commercial Code. The note obliges the borrowers to pay a sum certain at a time certain" }, { "docid": "218689", "title": "", "text": "Cir.1980) (per curiam). It may be established by demonstrating \"`by some credible evidence, the probability that the money was in fact drug related.'\" One 1986 Nissan Maxima GL., 895 F.2d at 1064-65 (quoting United States v. $215,-300.00 in United States Currency, 882 F.2d 417, 419 (9th Cir.1988), cert. denied, - U.S. -, 110 S.Ct. 3242, 111 L.Ed.2d 752 (1990) (emphasis in original) (citation omitted)). Probable cause can be established by circumstantial or hearsay evidence. Id. at 1065. Once the government establishes probable cause, the burden shifts to the claimant to prove by a preponderance of the evidence that the money used to purchase the properties in question came from an independent, non-drug-related source. United States v. One 1980 Rolls Royce, 905 F.2d 89, 90 (5th Cir.1990); One 1986 Nissan Maxima GL., 895 F.2d at 1065. Thus, failure to refute the government’s showing of probable cause results in forfeiture. B. On appeal, Jones argues that the government had only a “mere suspicion of a possible connection” between the purchase of the assets and illegal activity and that he had a legitimate source of income with which he purchased the assets. He also contends that his acquittal on drug trafficking charges shows that he had no connection with the marihuana loads. What Jones overlooks is that the burden of proof in a criminal trial differs from that involved in a forfeiture action. The government need not prove beyond a reasonable doubt that a substantial connection exists between the forfeited property and the illegal activity; rather, “in forfeiture actions under 21 U.S.C. § 881(a)(6), the government merely must demonstrate the existence of ‘probable cause for belief that a substantial connection exists between the property to be forfeited and the [illegal drug transaction].’ ” United States v. $4,255,625.39, 762 F.2d 895, 903 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986) (quoting United States v. $364,960.00 in United States Currency, 661 F.2d 319, 323 (5th Cir. Unit B Nov. 1981) (emphasis omitted)). In the instant case, Scott and Jones were implicated as the money men for the two loads" }, { "docid": "22764126", "title": "", "text": "proper application of the summary judgment standard in this case. For property to be forfeit under section 881, the government first must show probable cause to forfeit the property. When the government has established probable cause, the burden of proof shifts to the claimant, who must show, by a preponderance of the evidence, that the property is not forfeit — for instance, that, despite the government’s showing of probable cause, the property was not acquired with the proceeds of an illegal drug transaction. See 19 U.S.C. § 1615 (1988); see also United States v. Single Family Residence & Real Property Located at 900 Rio Vista Blvd., 803 F.2d 625, 629 (11th Cir.1986); United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 904 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986) [hereinafter $4,255,000], If the claimant fails to meet this burden, the property is forfeit to the United States. Accordingly, when the government moves for summary judgment in a section 881 civil forfeiture action, the court first must determine whether, as a matter of law, the government has shown probable cause for forfeiture. If not, summary judgment for the government is improper. See United States v. Twenty (20) Cashier’s Checks, Having the Aggregate Value of Two Hundred Thousand ($200,000) Dollars in U.S. Currency, 897 F.2d 1567, 1570 (11th Cir.1990) (per curiam) (exhibit). If so, the court then determines whether the claimant can show, by a preponderance of the evidence, whether the property is forfeit. The court, in deciding this issue on summary judgment, first must determine whether the government has met its “initial responsibility” of demonstrating the absence of a genuine issue of material fact — that is, taking all the evidence in the light most favorable to the claimant, has the government shown that no reasonable jury could award the property to the claimant? The government, because it does not bear the burden of proof on this issue, may meet this burden by either pointing out to the court specific portions of the record that it believes demonstrate that the claimant" } ]

[ { "docid": "18248913", "title": "", "text": "to. But, more significantly, this court considers that, only in exceptional instances, should an unsuccessful litigant be compelled by the court to repay his adversary’s outlay for expert testimony. The observations in Cheatham Electric Switching Device Co. v. Transit Development Co., supra, upon the approximation to advocacy of the ministry of the expert witness in his usual service are well taken and instructive. The claim, as made, will be denied. But the witnesses identified actually testified, and some of them on more than one day. The defendant is entitled to the taxation of their fees at the statutory rate (See Title 28 U.S.C., Section 600(c) [now § 1821]) and their proper mileage, if any. Accordingly, the denial of the taxation of these items is made with express reservation of the right of the defendant to make, within a prescribed time, a showing as to mileage properly allowable on account of the three witnesses. And the clerk is being directed to tax as costs the ordinary witness fees of those witnesses for the number of days on which, as the record may disclose or a supplemental showing, if any, of the defendant establish, they testified; and their mileage, if any, disclosed by such supplemental showing. Expenditures Incident to Taking of Depositions of Plaintiffs in Advance of Trial (Items IV, $35.00; V, $44.75; VI, $11.75; VII, $47.75; and VIII, $32.50) These disbursements were all made on account of depositions of persons who were plaintiffs at the time of taking for discovery purposes. They were taken by the defendant on its own motion, without leave or direction of court, upon notice and after the service of process for the compulsory appearance of the witnesses. They were not introduced in evidence, and were not used at all upon the trial, except that two of the plaintiffs, Alfred Hansen and Hazel Andresen, were severally asked upon cross examination whether they had made in their depositions statements considered by defendant’s counsel to have been at variance with aspects of their testimony before the court, and promptly admitted making the statements inquired about. The payments were for" } ]

[ { "docid": "20182777", "title": "", "text": "they will be disallowed. Other Costs Plaintiff seeks taxation of costs for the taking of videotape depositions, for rental of the equipment required to show the depositions at trial, for the stenographic transcripts accompanying the video depositions and for travel and lodging expenses of plaintiff, counsel and her economic expert, James Evenson. The costs associated with the taking of the videotape depositions are not specifically authorized by 28 U.S.C. 1920(2). However, numerous courts have held that costs associated with video deposition are nevertheless recoverable. See Commercial Credit Equipment Corp. v. Stamps, 920 F.2d 1361, 1368 (7th Cir.1990) and the cases cited therein. Such costs also include those associated with showing the videotapes at trial. Deaton v. Dreis and Krump Mfg. Co., 134 F.R.D. 219, 222 (N.D.Ohio 1991). See also Wright & Miller, Federal Practice and Procedure: Civil, 1992 Supp. § 2115. It would seem a non sequitur to allow the costs of taking a videotape deposition but to disallow the costs of showing it at trial. But what about the situation, such as in this case, when the prevailing party seeks the costs associated with both the videotape depositions and the accompanying stenographic transcripts? Commercial Credit, supra at p. 1369 disallowed costs pertaining to stenographic transcripts. The court reasoned that Fed.R.Civ.P. 30(b)(4)’s language that “A party may arrange to have a stenographic transcription made at the party’s own expense” seems to remove the court’s discretion to tax the costs of stenographic transcripts in addition to the costs of videotape depositions. This court respectfully disagrees with the Seventh Circuit’s reasoning. Rule 30(b)(4) allows a party to have a stenographic transcript made at its own expense. The rule says nothing about taxation of costs for such a transcript and certainly does not expressly preclude an award of costs. The court believes the rule merely states that any party who opts for a stenographic transcript is responsible to pay the court reporter, even if that party did not notice the deposition. Taxation of costs, on the other hand, is a method of allocating costs among the parties. How a cost ultimately is allocated" }, { "docid": "22845379", "title": "", "text": "above items were taxable. They were, under section 983, “copies of papers necessarily obtained for use,” being put in evidence, and there being no order rejecting them as evidence. 11. Incompetent and immaterial testimony. Under the provision in rule 67 in equity, that “the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just,” the plaintiff, now, for the first time, on an appeal from the taxation of costs, applies to the court to declare certain depositions to be incompetent and immaterial. This is done on an affidavit made by the counsel for the plaintiff, more than a month after the costs were taxed, setting forth that, in his opinion, certain depositions, evidence, and exhibits introduced by the defendants are incompetent or immaterial, and the cost of introducing and printing them should not be charged against the plaintiff. He specifies 18 different items. The counsel for the defendants makes an affidavit expressing a contrary opinion. Under this state of facts, it is a sufficient ground for denying the application, that the plaintiff did not, at or before the final hearing in June, 1884, or before the taxation of cost's, move to strike out the evidence in question. Whatever objections may have been taken to any of the testimony at the time It was introduced, (and only such objections could be considered, in any event,) they were vraived by the laches. It results that the taxations are all of them affirmed, except that, in each of-the suits Nos, 1, 9, and 10 a docket fee of $20 is to be added." }, { "docid": "12574295", "title": "", "text": "cost should be reduced or denied. Id. at 288-89. Moreover, while the district court need not write an opinion explaining the basis for allowing the taxation of costs, it must articulate its reasons for denying or reducing costs to the prevailing party. Id. at 288-89. Still, even with the prevailing party’s benefit of a presumption in its favor, the Third Circuit has observed that because a district court’s discretion to shift costs is constrained by statute, the costs to which a prevailing party is entitled under Federal Rule of Civil Procedure 54 “often fall short of the party’s actual litigation expenses.” In re Paoli, 221 F.3d at 458. The parties have broken down the costs at issue into five categories, and the Court will address each category in turn. 1. Deposition Costs Plaintiff seeks the amount of $6,513.95 in expenses incurred to obtain deposition transcripts. Defendant objects on the grounds that it is improper to tax the cost of every transcript of every deposition taken in the case, regardless of whether it was used at trial. Local Civil Rule 54.1(g)(7) states in relevant part: In taxing costs, the Clerk shall allow all or part of the fees and charges incurred in the taking and transcribing of depositions used at the trial under Fed.R.Civ.P. 32. Fees and charges for the taking and transcribing of any other deposition shall not be taxed as costs unless the Court otherwise orders. L.Civ.R. 54.1(g)(7) (emphasis added). In support of the deposition costs it seeks to tax against Defendant, Plaintiff attaches to counsel’s declaration various invoices generated by deposition service providers in connection with the depositions of 16 individuals, including the Plaintiff himself. Plaintiff fails to explain in his motion papers, however, in what way each of these deposition transcripts were used at trial within the meaning of Federal Rule of Civil Procedure 32, for example, to impeach a witness or conduct cross-examination. The Court also notes that Plaintiff fails to demonstrate, alternatively, that the transcripts were used in support of Plaintiffs cross-motion for partial summary judgment on liability, on which Plaintiff prevailed. See Fitchett v." }, { "docid": "12788455", "title": "", "text": "thereby incurred, as a question of law I have no doubt that the item must be disallowed. Costs are the creature of statute law, and there is nothing in the statutes regulating the taxation of costs which wduld justify the allowance of this item. Second. Exception is also taken to the allowance of $10 as solicitor’s fees for the taking of four depositions in the cause, which were taken at Petoskey, before John G. Hill, Esq., pursuant to an order of this court, based upon the stipulation of the solicitors in the cause, constituting him a special examiner for that purpose. It will be seen, therefore, that ■these depositions, although not taken before a regular examiner of this ■court, were taken in strict analogy to the ordinary practice of the court regulating the taking of testimony in causes, and that the authority to take them was conferred by the court in compliance with the stipulation of the parties. I do not think that the statute providing for the taxation of attorney’s or solicitor’s fees for taking depositions covers, either by its express terms or by any fair interpretation thereof, depositions taken before any of the regular examining officers of the court in the ordinary way of taking testimony in equity causes, or, as these were, before some person who, pursuant to the stipulation of the parties, is empowered to act in lieu of such an examiner. It is probable that the statutory provision was intended to provide for compensation in cases whore depositions are taken de bene esse, and in such other cases, not within the .scope of the ordinary method of taking testimony in causes pending in the federal courts, as may arise. The exception to this item must also be sustained. The third exception relates to the allowance of an item of three dollars to the complainant for his attendance as a witness. The bill, as presented to the taxing officer, contained a charge also for complainant’s traveling fees as a witness, but that charge was disallowed by the clerk. The objection to the allowance for his attendance" }, { "docid": "14624783", "title": "", "text": "agrees that VISA is entitled to recover deposition costs of witnesses whose depositions were read at trial and who did not testify live. However, neither party has identified which witnesses fall within that category. Nabanco has also agreed to the taxation of the deposition costs of certain other witnesses. The parties agreed to the deposition of each side’s expert witnesses. According to Nabanco, this agreement provided that neither side would bill the other for the fees charged by the expert for attendance at the deposition. Nabanco argues that, since the Federal Rules of Civil Procedure do not provide for the deposition of expert witnesses and the depositions occurred because of the agreement between the parties, the Defendant should not be able to recover the costs of the expert witness depositions. The Court would note that the agreement as described by Nabanco did not explicitly cover the question of costs beyond the fees of the expert witness and therefore does not control the question of the taxability of the court reporter fees related to those depositions. The depositions of expert witnesses will be considered under the same criteria as those applied to other witnesses. Nabanco objects to the taxation of the deposition costs for two groups of witnesses: 1) witnesses who were deposed but whose depositions were not read at trial because they testified live; and 2) witnesses who did not testify live at trial and whose depositions were not read or otherwise utilized at trial. Nabanco, relying on United States v. Kolesar, 313 F.2d 835 (5th Cir.1963), argues that a deposition is necessarily obtained for use in the case only if all or part of the deposition is actually introduced in evidence or used at trial for impeachment purposes. See Holmes v. Oxford Chemicals, Inc., 510 F.Supp. 915, 917 (M.D.Ala.1981), aff'd on other grounds, 672 F.2d 854 (11th Cir.1982). While the Court agrees that Kolesar approves the taxation of deposition costs in those two instances, the opinion also adopts a flexible concept of necessity which recognizes that the trial judge must determine the necessity of a deposition in the particular" }, { "docid": "7592573", "title": "", "text": "we are not dealing with inferences, presumptions and implications. They have no place. Haskell and Duke were together face to face. They spoke, and what they said the plaintiff shows by his witness Landis. It will thus be seen that the existence of the alleged contract then and there made, if made, must be shown by Landis’ testimony of what the two men then and there contracted to do. So regarding the basic necessity of proof of a contract, we turn to the testimony of Landis as to what was said by the two men. We quote his testimony bearing on that question: “There was, in fact, a conference on July 18th, in Mr. Allen’s office, 511 Fifth avenue; Mr. Allen, Mr. Perkins, Mr. Duke, Mr. Haskell, myself were pi’esent. “Q. May I inquire of you, Dr. Landis, whether at that interview you received authority to pursue the subject? A. I didn’t receive any authority; I received some funds and instructions to investigate the production of aluminum. “Q. Do you remember in the deposition I have heretofore referred to, this question was asked you and this answer given: ‘Q. At that conference did you get authority to pursue the subject? A. Yes, I got authority to study the matter of raw materials for aluminum production.’ Correct? A. I presume that is correct; yes. “Q. Well, you haven’t any doubt about it, have you? A. No; you have-a better record than my memory. “Q. Yes, I am reading from the stenographic record taken at the time; that is why I have so much confidence in it. Now; from whom did the authority come and under what circumstances? A. Mr. Duke. “Q. And were the necessary funds,guaranteed or were funds guaranteed? A. Yes, the Quebec Development Company through its president, Mr. Duke, guaranteed $50,000 for this investigation. Mr. Duke made that arrangement and I did proceed under that authority to investigate. That investigation lasted practically a year, “Q. Instead of spending $50,000, it ultimately cost $180,000'? A. Not necessarily that investigation. There were other investigations included in that charge for $180,-000. “Q." }, { "docid": "22286407", "title": "", "text": "the receipts accruing to Mr, Gleckman during the year 1930 and the bank deposits during that year, both as reflected in the testimony offered by the government and in defendant’s testimony, are different from those shown for the year 1929, no different questions are presented. We think the second count of the indictment was good against the demurrer and that the evidence was sufficient to take the issue raised by it to the jury. The instructions given fairly and correctly explain the issues and the law applicable, and no exceptions were taken to them. The judgment is affirmed. On Taxation of Costs. Leon M. Gleckman having been convicted of willfully attempting to evade income taxes due from him to the United States was sentenced, among other things, to pay the costs of the prosecution, in accordance with 28 U.S.C.A. § 822. Thereafter affidavit for taxation of the costs was filed by the United States District Attorney and notice of the intention of the clerk to tax in accordance with the affidavit was duly served upon the defendant. The defendant filed objections to the proposed taxation of the costs and the clerk, having taxed and entered the costs in the sum of $6,193.30 over the objections of the defendant, the defendant appealed to the District Court and moved to have the costs retaxed. The court examined the files and records and heard the parties and approved and confirmed the taxation of costs as made and entered by the clerk. Mr. Gleckman has prosecuted this appeal to reverse the order approving the taxation of costs and to obtain a retaxation, the appeal having been Consolidated with the appeal prosecuted by Mr. Gleckman from the judgment of conviction. It appears that there were two jury trials upon the indictment against Mr. Gleckman, said indictment containing three counts. On the first trial the jury disagreed. On the second trial Mr. Gleckman was convicted on the first and second counts and acquitted on the third. On this appeal from the order refusing to retax costs, we have the record of all of the proceedings on" }, { "docid": "1934213", "title": "", "text": "317-38 (E.D.Va.1973) (where counsel located near court where original filed, copies not taxable). Although frequent trips to the court to view exhibits involves some expense and inconvenience, such trips do not trigger a showing of necessity as required by the statute. Accordingly, defendant’s request for costs for duplication of exhibits is rejected. V. Costs for Taking the Deposition of Plaintiff Defendant’s final request is that costs of taking the deposition of plaintiff, Mr. Oetiker, be taxed. Defendant submitted a request for taxation for this item in the amount of $1136.63. The Clerk found this item properly taxable. Plaintiff argues that the deposition at issue was taken solely for discovery, not for trial, and therefore were not “necessarily obtained for use in the case” within the meaning of 28 U.S.C. § 1920. Plaintiff asserts that the deposition was not taken to preserve plaintiff’s testimony but merely for discovery. Plaintiff also states that the depositions were not submitted as exhibits, or otherwise used at trial. The court finds the costs of defendant’s deposition of plaintiff properly taxable in the amount requested. Expenses of discovery depositions shown to be reasonably necessary at the time taken are recoverable as costs even if the deposition is not used at trial. Illinois v. Sangamo Construction Co., 657 F.2d 855, 867 (7th Cir.1981); Nationwide Auto Appraiser Service, Inc. v. Association of Casualty & Surety Cos., 41 F.R.D. 76, 77 (W.D.Okla.1966); Electronic Speciality Co. v. International Controls Corp., 47 F.R.D. 158, 162 (S.D.N. Y.1969). The facts do not indicate that plaintiffs deposition was taken merely for investigative purposes. Cf. Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 2 (E.D.Mich.1970). Mr. Oetiker is the plaintiff in the case at issue and the taking of his deposition could hardly be characterized as the kind of “mer[e] fishing expedition” for which taxing of costs is prohibited under Section 1920. At the time the deposition was taken it appeared to be necessary, and it is taxable as a cost. See also Ingersoll Milling Machine Co. v. Otis Elevator Co., 89 F.R.D. 433, 435 (N.D.Ill. 1981). Therefore, defendant’s request for taxation" }, { "docid": "22286406", "title": "", "text": "Mr. Gleckman and his attorney had refused to answer the government agent’s questions, nor the grounds assigned by them for such refusal. The fact had been brought out by defendant and there is no reason to suppose that the import and significance of it was not discussed by counsel .before the jury. No error is found to sustain any of these assignments. It is contended that the demurrer to the first, count of the indictment should have been sustained. The first count of the indictment is in substantially the same form as was presented in Capone v. United States, 56 F.(2d) 927, where it was fully considered by the Court of Appeals for the Seventh Circuit and approved. We are in accord with the \"conclusion reached by that court and find no flaw in the first count of the indictment. As .to the second count of the indictment and the verdict and judgment thereon, practically the same considerations as we have found controlling in regard to the first count are applicable. Although the amounts of the receipts accruing to Mr, Gleckman during the year 1930 and the bank deposits during that year, both as reflected in the testimony offered by the government and in defendant’s testimony, are different from those shown for the year 1929, no different questions are presented. We think the second count of the indictment was good against the demurrer and that the evidence was sufficient to take the issue raised by it to the jury. The instructions given fairly and correctly explain the issues and the law applicable, and no exceptions were taken to them. The judgment is affirmed. On Taxation of Costs. Leon M. Gleckman having been convicted of willfully attempting to evade income taxes due from him to the United States was sentenced, among other things, to pay the costs of the prosecution, in accordance with 28 U.S.C.A. § 822. Thereafter affidavit for taxation of the costs was filed by the United States District Attorney and notice of the intention of the clerk to tax in accordance with the affidavit was duly served upon" }, { "docid": "5901375", "title": "", "text": "227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964): “We do not read that Rule [54(d) ] as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful-scrutiny.” For the reasons set forth below and upon a careful review of the Clerk’s assessment of costs and the record in this case, the motion to review taxation of costs is granted with respect to photocopying and deposition costs, costs specified in the governing statute, and denied with respect to the non-statutory costs for expert witness fees. Depositions Expenditures made in obtaining copies of depositions are taxable as costs pursuant to 28 U.S.C. §§ 1920(2) and (4). The authorizing statute allows for the taxation of costs for fees of the court reporter, exemplification and copies of papers.“necessarily obtained for use in the case.” In addition to the statutory restriction of costs to those depositions “necessarily obtained,” the Clerk restricts the assessment of deposition costs to those which are properly noticed and filed with the Court. See Clerk’s Supplemental Manual Issuance No. 33. The depositions giving rise to Plaintiff’s request for $101.76 were taken by Defendant of Plaintiff’s experts. Defendant did not notice or file the depositions with the Court; for this reason, the Clerk disallowed the cost. Plaintiff petitions for review of the Clerk’s disallowance of this amount, contending that the cost was reasonably incurred. Depositions which are used at trial are presumed to have been necessarily obtained. However, a case need not proceed to trial in order for a deposition to be “necessarily obtained” within the meaning of the statute. Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D.Ga.1981). It would indeed be harsh to penalize Plaintiff for having managed to settle his complaint favorably without resort to trial and the use of the depositions as evidence. Instead, the Court has discretion in determining whether or not the depositions were “necessarily obtained” in light of all the circumstances. Neely" }, { "docid": "15446189", "title": "", "text": "of a rule of practice as to all bills of costs. If one of our commissioners takes a deposition he must make this affidavit, and there is no reason why other officers who claim fees for like services should not be required to make it. But it has never been the practice in this court to swear to these taxed bills of costs, not even by the clerks, marshals, or commissioners, who are plainly required to do so; because, perhaps, it has been understood that the statute applies only to government cases. This objection is the first ever made on that account in this court, and it comes on a motion to retax the costs after they have been taxed and paid into court. I shall not, therefore, disallow the costs for the omission in this case. The practice of the court has been in violation of the statute in all cases, except government cases, and the statute is only extended to these particular items by a necessary implication and a construction that is now made for the first time in this court. Hereafter, however, if objection shall be seasonably made at the time of taxation, no bill of costs will be taxed without the affidavit required by the statute. The proper practice seems to be to have the officer taking the deposition include in his return a bill of the costs, and the affidavit of himself, or some one having knowledge of the facts, that the amount paid witnesses, and for exemplifications and copies used, if any, are properly entered, and that his own services have been actually and necessarily performed, as therein stated, and from this return the judge or clerk can tax the costs. But the statute permits the required affidavit to be made, by any one having knowledge of the facts, at any time before taxation by the court. There can be no doubt of the necessity for this in case the official is a United States court clerk or commissioner, and, I think, for the reasons stated, it necessarily applies to all bills of costs." }, { "docid": "23518024", "title": "", "text": "and admitted as evidence in the cause, $2.30.'’ And the act peremptorily directs, that “no other compensation shall be taxed and allowed” to solicitors, &c. This enactment is not left open to any liberality of in-tendment, but must be rigorously enforced, conformably to the mandate of congress. This whole provision covering taxable proceedings has, manifestly, direct relation to those which are final in the cause, and not to interlocutory or incidental ones, so familiar in our practice, however necessary they may' be lo its progress. That branch of practice, as a ground of remuneration to attorneys and solicitors, is abrogated by the statute, in so far as their compensation is chargeable upon the adverse party. The expenses in question accrued on a motion for a preliminary' injunction, which was in no way conclusive upon either party as to the merits of the cause; and. in that condition of the pioeeeding. the charge cannot be brought within the grant of costs made in the statute. The court, in its order made upon the motion, treated it as preliminary only, and not one on final hearing. It is the costs on final hearing alone, which are by the statute chargeable byr one party against the other. Had these affidavits, in such state of the cause, been admitted in evidence, I should have no doubt that, although not in strict legal nomenclature depositions, they might bo regarded as within the intention of congress, and be taxable under the denomination of depositions; but I can find no warrant in the act for their taxation against the plaintiffs, under the facts of the case, ev“n if they had been brought in under a formal commission issued in the cause, or had been taken do bene esse under the 30th section of the judiciary act. I consider the item as not taxable, because the proofs were not admitted on a final hearing of the cause, without considering it of moment whether they can be appropriately termed depositions. The taxation of $35 for the depositions in question must be set aside." }, { "docid": "15766572", "title": "", "text": "IV is disallowed. Neither the court nor defendant’s counsel can determine what part of the claimed costs was incurred in translat ing documents, or parts thereof, actually admitted into evidence. The burden for providing such a breakdown is with defendant. The total costs allowed for interpreters and translations is $3,033.27. Deposition Costs ($6,657.55). McLouth claims the costs incurred in obtaining transcripts of the depositions of the persons listed on Schedule VI. It is evident that this court has the power to tax these costs under some circumstances. 6 Moore’s Federal Practice, § 54.77 [4]. However, it is necessary to distinguish between depositions which are reasonably necessary to properly present a party’s case and depositions used essentially for the purpose of investigation or the kindred purpose of thorough preparation by counsel. Investigation expenses are not chargeable as costs. It is presumably in order to effectuate this distinction that many courts have adopted the practice of permitting taxation of deposition costs such as stenographers’ fees for depositions introduced at trial or used in cross-examination of witnesses and disallowing the costs of all other depositions. The claimed costs of the eleven depositions taken by Kaiser are disallowed. It appears that Toomey, Meyer, Zimmerman, Hays and Prince did not testify by deposition or orally. Iott, Glass, Flinn, Pehlke, and Johnson testified orally. These depositions were obtained for convenience of counsel. Only the deposition of Stone was read at trial; moreover, its use was quite limited and related to a subject not essential for the decision of the case. As to the copies of six depositions of plaintiff, the cost of Zimmerman’s deposition is disallowed since he did not testify. However, the other five persons listed in Schedule VI(A) testified at trial by deposition as plaintiffs’ witnesses. The cost of defendant’s copy of each of these depositions is therefore allowed, being necessary for cross-examination. The total amount allowed is $529.10. The Linz, Austria, Tests and Depositions ($58,337.41). Defendant seeks to tax approximately $58,000 in costs of its attorneys and experts’ traveling expenses, expenses for an interpreter, reporter fees and expenses, and its attorneys’ fees. Of" }, { "docid": "15572525", "title": "", "text": "the amount that PRPA seeks to recover is infinitesimal compared with the voluminous documentary evidence that this litigation involved. Progranos seeks $317.13 in costs for its translations. Despite the fact that Progranos fails to demonstrate how its translated documents relate to the litigation, Progranos shall recover its translation costs for the reasons stated above. Depositions Although there is no express statutory authorization for the taxation of deposition expenses as costs, courts have generally held that the cost of taking and transcribing depositions fits within [28 U.S.C. § 1920(2)]. Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1985). PRPA seeks to recover expenses associated with taking the depositions of several witnesses. For witness Frank Browning, PRPA claims that it is entitled to recover $4015.62. This total includes $275.00 for the transcript, $2,480.00 for travel to and from the deposition, $730.92 in hotel expenditures, and $529.70 in video costs. The parties do not dispute that PRPA is entitled to recover the $275.00 in transcript costs. The First Circuit has held that “if depositions are either introduced in evidence or used at trial, their costs should be taxable to the losing party.” Templeman, 770 F.2d at 249. On the other hand, if a deposition is not introduced into evidence or used at trial, “[i]t is within the discretion of the district court to tax deposition costs if special circumstances warrant it ____\"Id.. See also Ramos, 968 F.Supp. at 781. This Court refined this standard further when it held that for depositions not used at trial, “the determining factor is whether ‘the deposition reasonably seemed necessary at the time it was taken.’ ” Riofrio Anda v. Ralston Purina Co., 772 F.Supp. 46, 55 (D.P.R.1991) (quoting 10 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2676, at 424 (1998)). Mr. Browning’s deposition was introduced into evidence at trial, and its transcript is thus taxable. In contrast, PRPA can not recover for its expenditures on travel or on hotels while traveling to take Mr. Browning’s deposition. It is well settled that “[t]raveling expenses in relation to the taking" }, { "docid": "12788454", "title": "", "text": "Severens, J. The complainant’s costs in this cause having been taxed, a motion for retaxation thereof is now made, presenting three points for determination: First. Exception is taken to the allowance by the taxing officer of nine dollars for a survey made by one of the witnesses of the locus in quo, a certain dock, the exact location of which was somewhat in controversy in the case. The regular fees of this witness in the case appear to have been duly taxed according to the provisions of law, and this item of nine dollars is not for his fees as a witness, but for his services in making a preliminary survey of the dock for the purpose of qualifying him to testify with precision as to its situation. However desirable it may have been in the interest of the complainant that such survey should be made, in order that intelligent testimony upon that subject might be presented, ■and reasonable as it might seem, as an abstract proposition, that he .should be compensated for the expenditure thereby incurred, as a question of law I have no doubt that the item must be disallowed. Costs are the creature of statute law, and there is nothing in the statutes regulating the taxation of costs which wduld justify the allowance of this item. Second. Exception is also taken to the allowance of $10 as solicitor’s fees for the taking of four depositions in the cause, which were taken at Petoskey, before John G. Hill, Esq., pursuant to an order of this court, based upon the stipulation of the solicitors in the cause, constituting him a special examiner for that purpose. It will be seen, therefore, that ■these depositions, although not taken before a regular examiner of this ■court, were taken in strict analogy to the ordinary practice of the court regulating the taking of testimony in causes, and that the authority to take them was conferred by the court in compliance with the stipulation of the parties. I do not think that the statute providing for the taxation of attorney’s or solicitor’s fees for" }, { "docid": "11140285", "title": "", "text": "necessary to determine the effect of the 8th clause of the former 67th equity rule in reference to the taxation of the expenses of taking down depositions by a stenographer other than the officer taking the deposition^. The sole question now presented is as to the costs which may be properly taxed where the depositions are taken before a notary public, who is himself a stenographer, and who, instead of writing out the depositions, takes them down stenographically and afterwards reduces them to typewriting. By the Act of August 15, 1876, c. 304, 19 Stat. 206, notaries public of the several states were authorized to take depositions and do all other acts in relation to taking testimony to be used in the courts of the United States “in the same manner and with the same effect as commissioners of the United States Circuit Court may now lawfully take or do.” At that time section 847 of the Revised Statutes provided that the fees of the commissioners, that is, commissioners of the Circuit Courts (R. S. § 627; United States v. Construction Co., supra), should be 20 cents per folio “for taking and certifying depositions to file.” And since the Act of 1876 expressly provided that notaries public might take depositions in the same manner and with the same effect as commissioners of the Circuit Courts might then take them, I am constrained to hold that one of the necessary effects, coming plainly within the intent of Congress, was that notaries public, upon taking such depositions, should be allowed the same fees as were then allowed to commissioners of the Circuit Courts, that is to say, 20 cents per folio for taking and certifying depositions to file; and that this amount, and no other, can hence be properly allowed as taxable costs, regardless of the reasonableness of the sum actually paid or the- customary local charges for such services. It is true that by section' 19 of the Act of May 28, 1896, c. 252, 29 Stat. 184, the offices of commissioners of the Circuit Courts were abolished, and provision made" }, { "docid": "9542496", "title": "", "text": "this mode, the witness should attend in person from a remote part of this country or from abroad, the costs of the case might be ruinous. In the divergence of opinion of judges of eminence, this court concurs with the majority of the courts, and adopts the views expressed by Judge Brown in The Vernon, 36 Fed. 116, including his qualification of the rule. Oases may occur — exceptional cases, of rare occurrence — in which the presence of a witness is absolutely necessary. Such cases can be provided for by special order, and full mileage be allowed. In the present case the exception to the taxation by the clerk is overruled. The other exception is taken by the defendant. Certain depos'- ■' tions were taken for defendant in this cause. Under the ruling of ■ the court directing a verdict, these were not used at the trial. The . plaintiff has charged costs for them. The clerk allowed the costs, and defendant excepted. The language of the statute is “for each deposition taken and admitted in evidence in a cause.” 10 Stat. 162. Now, the deposition was taken; no exception was made there- . to; and, as the deposition was that of the defendant, it can safely , be assumed, at least as to it, that no exception could be taken. It was therefore in a sense admitted in evidence in a cause to be used .as evidence. As Mr. Justice Nelson says in Nail Factory v. Corning, Fed. Cas. No. 14,197, this language of the statute “relates to testimony taken out of eonrt under authority, which will entitle it to be read as evidence.” The service in taking a deposition is rendered when it is taken, and for this compensation is given. Merely reading or listening to it during the trial is service of another character. The exception is disallowed." }, { "docid": "15446190", "title": "", "text": "made for the first time in this court. Hereafter, however, if objection shall be seasonably made at the time of taxation, no bill of costs will be taxed without the affidavit required by the statute. The proper practice seems to be to have the officer taking the deposition include in his return a bill of the costs, and the affidavit of himself, or some one having knowledge of the facts, that the amount paid witnesses, and for exemplifications and copies used, if any, are properly entered, and that his own services have been actually and necessarily performed, as therein stated, and from this return the judge or clerk can tax the costs. But the statute permits the required affidavit to be made, by any one having knowledge of the facts, at any time before taxation by the court. There can be no doubt of the necessity for this in case the official is a United States court clerk or commissioner, and, I think, for the reasons stated, it necessarily applies to all bills of costs. The fees of a transcript should be verified in the same way. The objection made to the attorney’s foes for depositions is not well taken. They were used under an agreement of counsel that they should be “read and used in evidence on the trial” in this case. The statute gives to the attorney, “for each deposition taken and submitted in evidence in a cause, $2.50.” Rev. St. § 824. This does not mean that the depositions shall be formally taken, and the fees allowed only for such as are formally taken, but for those that are taken in any way and admitted in evidence. The use of the deposition on the trial is what entitled the attorney to the fee. Stimpson v. Brooks, 3 Blatchf. 456. In Ex parte Robbins, 2 Gall. 320, the law allowed certain fees for filing interrogatories, the libel and answers which were taxed, where, by agreement of counsel, the case proceeded without the papers being actually filed. Mr. Justice Story said: “No interrogatories or answers were, in fact, filed;" }, { "docid": "18248915", "title": "", "text": "the following elements of expenditure: Item IV, witness fees, and, in the case of three of the parties, mileage, demanded by and paid to the plaintiffs as a condition to their appearance to testify; Item V, constable fees for the service of subpoenas on the plaintiffs incident to the depositions; Item VI, witness fees and constable service charges in respect of the notices to take depositions of three persons, including one married couple, who, contending that they had been included as plaintiffs without their knowledge and consent, withdrew from the case before its trial; Item VII, the cost, presumably not otherwise claimed, of the depositions of Alfred Hansen and Hazel Andresen referred to in the cross examination of those two plaintiffs, as witnesses, supra; *and Item VIII, a time charge for depositions not transcribed paid to two reporters, by whom the testimony in the depositions was taken stenographically. In respect to depositions taken in anticipation of a trial, there is authority for the taxation of their costs in some circumstances ; and the fact that the testimony was taken without previous order of court, and was not actually introduced upon the trial is not a sufficient reason for their disallowance. Harris v. Twentieth Century Fox Film Corp., supra; Federal Deposit Insurance Corp. v. Fruit Growers Service Co., supra; Republic Machine Tool Corp. v. Federal Cartridge Corp., supra; Gotz v. Universal Products Co., supra; Curacao Trading Co. v. Federal Insurance Co., supra; and W. F. & John Barnes Co. v. International Harvester Co., supra. But a review of the cases in which such costs have been taxed persuades this court that (with the exception hereinafter noted) there is no situation in the present case which should be allowed to prompt their taxation. What is disclosed on this occasion is the taking by a defendant of the depositions of his adversaries. It differs, in degree not in kind, from the ordinary exploratory deposition of a party, principally, if not entirely in the number of witnesses whose examination was suggested by the number of plaintiffs. The defendant’s course in the premises reflects thorough," }, { "docid": "22270690", "title": "", "text": "more liberal rule against the Government. However as to the cost for copies of a deposition, we think that the express reference to court costs for FTCA suits requires that we analyze the problem as though the case were between private litigants. This is the approach which the Government has taken both in its brief and on the argument. Before getting into the more troublesome question as to copies of a deposition, it is helpful to put several things at rest. First, no real dispute has been raised as to the Government’s underlying contention that taxation of particular items of costs in legal (as distinguished from equitable) actions depends upon a statute. We can for our present purposes assume that this is substantially correct. Next, there is the matter of the status of costs incurred for obtaining the original of a deposition. This, as is true of the problem under review concerning copies, brings into play § 1920(2) which allows: “Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.” Though § 1920(2) does not specifically mention a deposition, we agree with prior decisions suggesting that depositions are included by implication in the phrase “stenographic transcript.” The fact that the reporter-stenographer actually taking the deposition is not the official court reporter of that particular Court is of no more consequence as to depositions than it would be as to trial evidence taken by a substitute non-official reporter with consent of the Court. Of course that factor might require special scrutiny as to the basis and reasonableness of the charges rendered. This brings us then to the question of costs for a copy of a deposition obtained by counsel for his use. We have not heretofore ruled on this, nor, so far as we have been informed, has any other Court of Appeals. The Government urges, however, that by our action in an analogous situation, we are committed to its view, and that in any event a great number of District Court opinions reflects a unanimity and view so obviously" } ]

[ { "docid": "23674887", "title": "", "text": "that habeas corpus in the federal courts by one convicted of a criminal offense is a proper procedure ‘to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution,’ even though the events which were alleged to infringe did not appear upon the face of the record of his conviction.” A further review of the decisions is contained in Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. This case raised the question of the availability of the writ of haheas corpus to attack collaterally a conviction for refusal to report as required by order of the officials administering the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., when it appeared that the trial court in the criminal case had erred in refusing to permit the accused to defend on the ground of an invalid classification. In holding against the availability of the writ, the Court said, in part: “It is plain, therefore, that the trial courts erred in denying Sunal and Kulock the defense which they tendered. * * * [But,] “The normal and customary method of correcting errors of the trial is by appeal. Appeals could have been taken in these cases, but they were not. It cannot be said that absence of counsel made the appeals unavailable as a practical matter. See Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461. Defendants had counsel. * * * ” 332 U.S. at pages 176-177, 67 S.Ct. at page 1589. This is, generally, the status of the Supreme Court decisions as to when habeas corpus is available, with no decision specifically controlling the case now before us. The precise question, however, has been often before the various courts of appeals. Those courts, including our own, have ruled uniformly that the admission of confessions obtained by illegal detention is not a ground for collateral attack against the sentence and judgment following thereupon. Eury v. Huff, 1944, 79 U.S.App.D.C. 289, 146 F.2d 17; Miller v." } ]

[ { "docid": "19067301", "title": "", "text": "in which before passing sentence the trial court had not given the defendant an opportunity for allocution as commanded by Rule 32(a) of the Federal Rules of Criminal Procedure. The Supreme Court held: “The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent’. Bowen v. Johnston, 306 U.S. 19, 27 [59 S.Ct. 442, 446, 83 L.Ed. 455]. See Escoe v. Zerbst, 295 U.S. 490 [55 S.Ct.. 818, 79 L.Ed. 1566]; Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461]; Walker v. Johnston, 312 U.S. 275 [61 S.Ct. 574, 85 L.Ed. 830]; Waley v. Johnston, 316 U.S. 101 [62 S.Ct. 964, 86 L.Ed. 1302], 368 U.S. at 428, 82 S.Ct. at 471.” The readily apparent teaching of Davis is that while certain nonconstitutional errors of law are within the coverage of § 2255 not every such error can be raised on a § 2255 motion; in other words, such errors are not to be held fatal on a per se basis. The foremost requirement is that there must be an indicated prejudice to the defendant and the claimed error must have been a fundamental defect which inherently (emphasis added) results in a miscarriage of justice, presenting exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent. In a case remarkably like the one now before us, in which a special parole term was not even mentioned in the guilty plea proceedings, the Eighth Circuit held that “the evaluation of the error in post-Davis § 2255 proceedings will now require that the error" }, { "docid": "22353872", "title": "", "text": "U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; cf. Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 86 L.Ed. 1302.” [Italics supplied] ■ ■ - Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461: “It must be remembered, however, that a judgment can not be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity.” Glasgow v. Meyer, 225 U.S. 420, 430, 32 S.Ct. 753, 756, 56 L.Ed. 1147: “It would introduce confusion in the administration of justice if the defenses which might have been made in an action could be reserved as grounds of attack upon the judgment after the trial and verdict.” 312 U.S. 546, 551, 61 S.Ct. 640, 85 L.Ed. 1034. 312 U.S. 275, 284, 286, 61 S.Ct. 574, 85 L.Ed. 830. Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 86 L.Ed. 1302; Cochran v. Kansas, 316 U.S. 255, 256, 62 S.Ct. 1068, 1069, 86 L.Ed. 1453: “The Kansas Supreme Court denied the writ, stating that ‘the records of courts are not set aside upon the unsupported statements of a defeated litigant.’ Cochran v. Amrine, 153 Kan. 777, 113 P.2d 1048, 1049. We accept the court’s conclusion that the record, showing that Cochran was represented by counsel throughout, and revealing on its face no irregularities in the trial, is sufficient refutation of his unsupported charge that he was denied the right to summon witnesses and testify for himself.” Ex parte Quirin, 317 U.S. 1, 18, 24, 48, 63 S.Ct. 1, 2, 87 L.Ed. 3, affirming Ex parte Quirin, D.C., 47 F.Supp. 431, in which the District Court denied leave to file a petition for habeas corpus. Slaughter v. Wright, 4 Cir., 135 F.2d 613; McCord v. Page, 5 Cir., 124 F.2d 68; cases cited supra note 63. See note 55 supra. McJordan v. Huff, 77 U.S.App.D.C. 171, 133 F.2d 408. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633; Wood v." }, { "docid": "19246083", "title": "", "text": "the ground that his plea was coerced. The opinion states that petitioner ‘waived the defense and the constitutional right if any he had, and cannot assert it now on habeas corpus proceedings’. The case is before us on a motion of petitioner to proceed, in forma pauperis on his petition for certiorari and the Government’s confession of error. We grant the-motion and the petition for certiorari. “The Government confesses error-for the reason that the habeas corpus petition raises the material issue whether the plea was in fact coerced by the particular threats alleged which stand undenied on the-record, and that upon that issue petitioner is entitled to a hearing in accordance with Walker v. Johnston,. 312 U.S. 275 [61 S.Ct. 574, 85 L.Ed., 830]. “ * * * If the allegations are found to be true, petitioner’s constitutional rights were infringed. * * And if his plea was so coerced as to deprive it of validity to support the conviction, the coercion likewise deprived it of validity as a -waiver of his right to assail the conviction. Johnson v. Zerbst, 304 U.S. 458, 467 [58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 1468]. “The issue here was appropriately raised by the habeas corpus petition. The facts relied on are dehors the record and their effect on the judgment was not open to consideration and review on appeal. In such .circumstances the use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been In disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights. * * * “The principle of res judicata does not apply to a decision on habeas corpus refusing to discharge a prisoner, Salinger v. Loisel, 265 U.S. 224 [44 S.Ct. 519, 68 L.Ed. 989]. .* * * ” A guilty plea induced by promises" }, { "docid": "23404015", "title": "", "text": "taken. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974), appropriately states the standard for consideration of a § 2255 motion: This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), for example, we held that “collateral relief is not available when all that is shown is a failure to comply with the formal requirements” of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was “a fundamental defect which inherently results in a complete miscarriage of justice,” and whether “[i]t presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Id., at 428, 82 S.Ct. at 471 (internal quotation marks omitted). . . . ” In Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), cited in Davis, the Supreme Court said: The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101," }, { "docid": "9557567", "title": "", "text": "of these proceedings was started. Although the same rule permits the court to correct an illegal sentence at any time, the illegality referred to is apparently one disclosed by the record, such as a sentence in excess of the statutory provision, or in some other way contrary to the applicable statute. Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 85 L.Ed. 1392; Lockhart v. United States, 6 Cir., 136 F.2d 122, 124. See United States v. Coy, D.C., 57 F.Supp. 661. The district court does not have jurisdiction after the expiration of the term at which the defendant was sentenced to determine whether or not the sentence is in violation of some constitutional right not put in issue in the case. Lockhart v. United States, supra, 136 F.2d at pages 124-125. Such issues dehors the record would seem to be properly presented by habeas corpus proceedings. Waley v. Johnston, 316 U.S. 101, 104-105, 62 S.Ct. 964, 86, L.Ed. 1302; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. Nevertheless considering the question on its merits, we are of the opinion that the rulings of the District Judge should be affirmed. As a practicable matter, it is only necessary to consider the second appeal. Both appeals raise the same question, and even if, as a matter of procedure, the District Judge proceeded incorrectly in the first appeal, the error was corrected and the issue reconsidered in the later proceeding, from which the second appeal was taken. Two additional questions argued in the first appeal have no merit. The alleged involuntary confession complained of was not used. If considered as an involuntary plea of guilty, it should have been raised by habeas corpus proceedings. Waley ¡V. Johnston, supra. The contention that appellant was not taken before a U. S. Commissioner following his apprehension on May 8, 1947 is raised by brief, not by the petition, in Appeal No. 10,687. In any event, appellant was an escaped convict and was properly" }, { "docid": "23404016", "title": "", "text": "United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), cited in Davis, the Supreme Court said: The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. As Judge Coleman stated in Howard v. United States, 580 F.2d 716 (5th Cir. 1978) (a case involving Rule 11 prior to the 1975 amendments): The readily apparent teaching of Davis is that while certain nonconstitutional errors of law are within the coverage of § 2255 not every such error can be raised on a § 2255 motion; in other words, such errors are not to be held fatal on a per se basis. The foremost requirement is that there must be an indicated prejudice to the defendant and the claimed error must have been a fundamental defect which inherently results in a miscarriage of justice, presenting exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent. On a petition for habeas corpus relief, the Howard principles applied to the old Rule 11 are likewise to be applied to guilty pleas taken under the amended Rule 11. On the findings of the district court enumerated above, the defendant has not shown that" }, { "docid": "14812970", "title": "", "text": "the statutory presumption is not operative, the standard of proof on the issue of ineffectiveness is preponderance of the evidence. See Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941) (habeas petitioner has the “burden of sustaining his allegations by a preponderance of the evidence”); Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1024-25, 82 L.Ed. 1461 (1938) (prisoner seeking federal habeas must prove by preponderance of the evidence that he did not waive right to counsel); Developments in the Law, supra at 1140. The preponderance of the evidence standard would control at the hearing on effectiveness of trial counsel. REVERSED and REMANDED. . Thomas contends that among the evidence of mitigation which could have been presented with minimal diligence by trial counsel was the following: a) that he had no prior record of criminal offenses either as an adult or as a juvenile; b) that he had no prior history of violence and was never a disciplinary problem; c) that prior to his arrest he was regularly and gainfully employed and that he fully supported himself and assisted in supporting his parents and six younger siblings; d) that he raised hogs to contribute to the support of his family; e) that he regularly attended church and Sunday School; f) that he had a good reputation in his community; g) that while his older brother was in the service Thomas took care of his brother’s children; h) that he is a talented artist and that he could be productive in prison by further developing his artistic skills. . 28 U.S.C. § 2254(d) provides in pertinent part: (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding," }, { "docid": "20075881", "title": "", "text": "of the assistance of counsel for defendants in both federal and State criminal prosecutions in relation to the due process of law which is required in federal cases by the 5th and 6th Amendments and in State cases by the 14th Amendment. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. -; Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed.-; Holiday v. Johnston, 61 S.Ct. 1015, 85 L.Ed. -, May 26, 1941. The jurisdiction of this court to release State prisoners confined contrary to provisions of the federal constitution has not been challenged in this case. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed 969; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. Prior to a few years ago applications to this court for the exercise of that jurisdiction were comparatively rare; but in the last few months there have been a number of applications to this court for release of Maryland State prisoners, mostly on the ground that counsel were not assigned for their defense by the State Court. Practically all of these applications originated in letters written from the Maryland Penitentiary to a Judge of this court and are in the nature of very informal petitions for the writ of habeas corpus. Where the facts alleged by the petitioner obviously constituted no proper basis for the issuance of the writ, the court has declined to issue it in accordance with the well established practice in habeas corpus cases. See Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. — , where, in the opinion by Mr. Justice Roberts, it is said: “It will be observed that if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue.”" }, { "docid": "15852436", "title": "", "text": "writ. Therefore, acting under § 753 of Title 28, U.S.C., I ordered the court reporter to transcribe the criminal proceeding at the expense of the United States and to deliver the transcript to me; that has been done. In determining the sufficiency of the allegations of the petition for a writ, I have treated the full contents of the transcript as a part of the petition for the writ. The allegations of the petition, supplemented by the transcript, are to the following effect: 1.' The trial judge, in the presence of the jury, evidenced spleen and hostility against Quantz’ counsel, at the outset by chiding him •concerning tardiness in attendance upon the court, and throughout the trial by the nature and manner of the trial judge’s rulings. Particular reference is made in this connection to pages 44, 45, 46, 58, and 72 of the transcript. 2. The trial judge refused to allow counsel for Quantz to make certain offers of proof. Particular reference in this connection is made to pages 48, 49, 58, 59, and 94 of the transcript. Those portions of the transcript show the following: There was denial of cross-examination by counsel for Quantz in which it was sought to obtain admissions by the prosecutrix, Miss Helen L. Aldx'ich, that she had had an improper relationship with a Mr. Bladen. An offer to make proof of this was also denied. An attempt was made by counsel for Quantz to bring out on cross-examination of Miss Aldrich that the same Mr. Bladen was ■responsible for her pregnancy. Also counsel for Quantz sought to develop on cross-examination that persons other than the defendant were coxxnected with the abortion testified to by Miss Aldrich. The trial judge ruled that the questions related to an immaterial subject. The tx-ial judge also rejected an offer of proof, stating, however, that he understood what was being offered so that there was no need of discussing it. An attempt was made by counsel for Quantz on cross-examination of Miss Aldx-ich to develop that she had asked Quantz to wx-ite a letter to her husband, that" }, { "docid": "11219318", "title": "", "text": "of proof at the hearing in the state court on his writ of error coram nobis was a preponderance of the evidence * * * a reading of the transcript of the state court hearing per suades me that petitioner failed to establish his denial of counsel in the proceedings resulting in his second conviction, even by a preponderance of the evidence.” The judge, however, issued a certificate of probable cause and assigned counsel for the appeal to this court. Counsel for Brennan argues that when, as here, oral testimony constitutes a material part of the evidence, a combination of a full evidentiary hearing before a state judge imposing too heavy a burden of proof and a reading of the transcript by a federal judge imposing a proper standard is not enough; only an evidentiary hearing before a judge proceeding under a proper standard will suffice. This proposition is said to follow from the importance universally conceded to the observation of the witnesses’ demeanor by the trier of the facts; the bearing of the proponent’s witnesses, it is urged, might be good enough, or that of the opponent’s witnesses bad enough, that a case could be won on the preponderance test but lost if the clear and convincing standard were applied. Although few cases will be so delicately poised, we cannot quarrel with the abstract logic of the proposition — a course which, indeed, is not open to us— at least if we except cases where, had a jury been present, the federal judge could properly have directed a verdict against the petitioner. The question remains, however, whether the New York court in this case did impose a burden of proof that would require a new federal hearing. The burden of persuasion in federal habeas corpus is the usual civil one of a preponderance of the evidence. . See Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830 (1941); Teague v. Looney, 268 F.2d 506, 508 (10 Cir. 1959); Hall v. Warden," }, { "docid": "23250090", "title": "", "text": "not have been a third offender in 1951 or a fourth offender in 1957. Holly may at this time, by habeas corpus, attack the recidivist sentences on this ground. See: McDorman v. Smyth, 1948, 188 Va. 474, 50 S.E.2d 423; Fitzgerald v. Smyth, 1953, 194 Va. 681, 74 S.E.2d 810. Holly brought a petition in 1958 seeking a writ of habeas corpus in the Hustings Court of the City of Portsmouth. He attacked the 1942 convictions for storebreaking as void for lack of counsel. His petition was denied, a writ of error was refused by the Supreme Court of Appeals of Virginia, and the Supreme Court of the United States denied certiorari, 1959, 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83. Thus Holly has, as the state concedes, properly exhausted his state remedies. Denial of the constitutional right to counsel is one of the grounds for relief most often raised in the numerous appeals in this court, involving the legality of custody of both state and federal prisoners. In many instances, we are confronted with bald allegations of denial of counsel, but no facts are alleged upon which the claims rest. In others, it is clear that the petitioners, if state prisoners, have not properly presented their claims to the state courts. The record before us demonstrates that this case falls into neither of these categories. In all federal criminal trials involving serious offenses, defendants are entitled, under the Sixth Amendment, to be advised of their right to an attorney and to have one appointed for them if they are financially in need. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. In state criminal trials, however, the Supreme Court has not formally abandoned the distinction, first made in Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, between capital and non-capital offenses. If the offense is capital, the lack of counsel, unless the" }, { "docid": "616371", "title": "", "text": "years after the term has expired in which the judgment of conviction was had, may be opened. Certain it is that the time for motion for a new trial or for an appeal has long since passed. Habeas corpus is not available in this district as petitioner is not here confined. The Supreme Court has expressly refrained from passing upon the question whether district courts may exercise in criminal cases a correctional jurisdiction at subsequent terms. We think, however, a court is not helpless to remedy an injustice, if one is proved to have been committed, which goes to the extent of depriving a man of his constitutional rights. The motion in the particular case may be treated, for this purpose, as a modern substitute for the ancient writ of error coram nobis. We think the present question involving protection of one’s rights under the constitution is just as fundamental as those for the protection of which this time honored writ was devised and used in the early common law procedure. The judgment of the District Court is, therefore, vacated and the case remanded to that court to give the petitioner an opportunity to present evidence to establish his allegations of fact which would show that his original conviction was in violation of his rights under the Sixth Amendment of the Constitution of the United States. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; see also Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435. Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633; the opinion of the court collects the recent federal decisions on the subject. The citations need not be repeated here. O’Keith v. Johnston, 9 Cir., 1942, 129 F.2d 889, 890. See rules 2 and 3 of the Rules of Criminal Procedure, 18 U.S.C.A. following Section 688. United States ex" }, { "docid": "15852433", "title": "", "text": "legality of his detention. Quantz then filed a motion in the District Court, pursuant to § 2255, to vacate the sentence imposed upon him in the criminal proceeding; that motion was denied. Quantz next filed a petition in the District Court for a writ of habeas corpus; that petition was denied. Quantz then filed applications in the District Court for leave to appeal in forma pauperis from the order denying the motion to vacate sentence and from the order denying the last mentioned petition for a writ of habeas corpus; those applications were allowed and the appeals were noted. Quantz then filed applications in the Court of Appeals for leave to prosecute those appeals in forma pauperis; those applications were allowed and those appeals are presently pending. Quantz moved the Court of Appeals for an immediate hearing of such appeals and for the furnishing at the expense of the United States of a stenographic transcript of the proceedings at the criminal trial; that motion was denied. Quantz has now presented a petition to me, for the second time, for a writ of habeas corpus. In view of the previous proceedings in the District Court and the disposition thereof, I entertained the present petition — notwithstanding that in the ordinary course such a petition addressed to an individual judge of the Court of Appeals is denied, the appropriate procedure being to address the same to the District Court or to one of its judges. Brosius v. Botkin (1940), 72 App.D.C. 29, 110 F.2d 49. Upon the ground, among others, that the petition for a writ of habeas corpus fails to state facts which entitle Quantz to the issuance of a writ, the Government opposes the same. The question thus raised is whether or not, assuming the truth of well-pleaded allegations of the petition, they show that there was in the criminal proceeding such a denial of a right or rights guaranteed a defendant in a criminal case by the Constitution as to deprive the District Court of jurisdiction to impose sentence. That is the sole question before me. Johnson v. Zerbst," }, { "docid": "8577717", "title": "", "text": "or if his plea of guilty was coerced or induced by deception upon the part of the Government officials, then it was the duty of the district court to order his release upon a writ of habeas corpus. Walker v. Johnston, 1941, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830; Smith v. O’Grady, 1941, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859; Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Johnson v. Zerbst, 1938, 304 U.S. 458, 467-469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461. “It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of the court carries with it a presumption of regularity” and the prisoner is under the burden of proving by a preponderance of evidence the facts which he alleges entitle him to a discharge. Johnson v. Zerbst, supra, and Walker v. Johnston, supra. At a preliminary hearing before the United States Commissioner appellant was represented by an attorney. Thereafter, he negotiated with other attorneys. As a reason for not engaging one, he states that he could not afford to pay the fee asked. He alleges here that he did not know, and that the trial judge did not inform him, that if he so desired, counsel would be appointed to represent him at no cost to him. For this reason, he contends that he was deprived of the right to assistance of counsel. In Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 465, 86 L.Ed. 680, the supreme court stated that “The trial court should protect the right of an accused to have the assistance of counsel. ‘This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, * * *.’ Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct." }, { "docid": "15852440", "title": "", "text": "Quantz the due process of law guaranteed by the Fifth Amendment. Assuming the truth of the allegations of the petition for a writ, and considering as a part thereof the transcript of the criminal proceeding, my conclusion is to the contrary: 1. So far as concerns the alleged spleen and hostility of the trial judge toward counsel for Quantz, the transcript shows that such alleged spleen and hostility concerned largely the tardiness of counsel for Quantz in attendance upon the court at the outset of the trial — that counsel for Quantz was in effect reprimanded .by the court for such tardiness. But the transcript further shows that counsel for the Government was also in effect reprimanded by the trial judge for similar tardiness. Even if the reprimand of counsel for Quantz be assumed to have been improper, I am unable to conclude that it could have so far diminished the confidence of the jury in him as to malee his defense of Quantz ineffective. 2. So far as the denials of cross-examination are concerned, assuming the same to have been erroneous, I am unable to conclude that they amounted to a denial of the effective assistance of counsel or of due process of law. 3. So far as the rejections of offers of proof are concerned, assuming that they also were erroneous, I am again unable to conclude that they reached the level of denial of the effective assistance of counsel or of due process of law. Accordingly I cannot conclude that the District Court lost jurisdiction to sentence Quantz. Counsel for Quantz urges that unless a writ of habeas corpus is issued there will have been a denial of justice because Quantz, being a poor person, was unable, for the purpose of an appeal from the sentence imposed in the criminal proceeding, to obtain a transcript of the same. That contention is in my view not meritorious. The Constitution guarantees a trial, not an appeal; the right to an appeal is statutory. § 1291, Title 28 U.S.C. There is a statutory provision governing the authorization of proceedings, including" }, { "docid": "22891620", "title": "", "text": "to testify concerning these allegations. This is urged as reversible error. While there is a minority view, the great weight of authority is that in the absence of a charge of fraud, the judgment record of a court imports absolute verity and that it may not be challenged in a collateral proceeding by parol testimony. While there is some language in some decisions by the Supreme Court indicating that this rule is not to be applied in all its rigidity in a habeas corpus proceeding in which violations of fundamental constitutional rights are claimed, we think the later decisions by the Supreme Court indicate that recitals in the judgment record going to the jurisdiction of the court, such as that a defendant was represented by counsel, are impervious to attack by testimony in the absence of an allegation of fraud. in Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009, a petition in a habeas corpus proceeding alleged that petitioner was tried by a jury of eleven men, notwithstanding a recitation in the record that “a jury of good and lawful men\" was duly impaneled. The Supreme Court held that the record imported absolute verity and was not open to collateral attack. In Johnson v. Zerbst, 304 U.S. 458, 466, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357, the Supreme Court quotes with approval from In re Mayfield, Petitioner, 141 U.S. 107, 11 S.Ct. 939, 35 L.Ed. 635, as follows: “And the petitioned court has ‘power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or the person, even if such inquiry (involves) an examination of facts outside of, but not inconsistent with, the record.’ ” In Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 578, 85 L.Ed. 830, Justice Roberts indicated that a petitioner could not dispute incontrovertible facts “such as those recited in a court record.” Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 365, indicates that petitioner’s right was limited to establishing allegations in the petition not inconsistent with the record.." }, { "docid": "13769647", "title": "", "text": "a hearing on the claim that appellant, was denied his right to counsel when sentence was imposed was error, and that, the case must be remanded for such hearing. I Under the circumstances of this case, appellant is entitled to seek relief for a violation of his constitutional rights by a motion in the nature of a writ of error coram nobis. U. S. v. Morgan, 202 F.2d 67 (2nd Cir. 1953), aff’d, 346. U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248; (1954). However, it is clear that appellant is entitled to a hearing only if his; petition alleges facts which would support a claim of deprivation of constitutional right, Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941), and some material issue of fact is in dispute. Walker v. Johnston, 312 U.S. 275, 284-285, 61 S.Ct. 574, 85 L.Ed. 830 (1941); U. S. ex rel. Zdunic v. Uhl, 137 F.2d 858, 861 (2nd Cir. 1943). II Appellant’s first claim is that the representation provided by assigned counsel when he pleaded guilty to the forgery count was so inadequate as to be merely pro forma. In support of this contention the petition alleges that the plea was made “after a short discussion” between appellant and counsel. Furthermore, in an affidavit accompanying the notice of motion, not of petitioner but of his counsel, it was stated that appellant claimed that “the attorney assigned by the Court never conferred with him at great length nor actually went into the details of the facts of the case in order to prepare any adequate and substantial defense * * * ” There can be no doubt that appellant was entitled to the “conscientious services of competent counsel” at that stage of the proceedings, and that mere perfunctory representation is not enough. U. S. v. Wight, 176 F.2d 376, 378, (2nd Cir., 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), and cases cited therein; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ; Rule 44, Fed.R.Crim.P., 18 U.S.C.A. However, the allegation" }, { "docid": "8577716", "title": "", "text": "he replied that he did”; that he “freely and voluntarily entered pleas of guilty to the charges of the respective counts of the indictments theretofore read to him”; that “his pleas of guilty * * * were not entered as a result of any threats made against him, or any promises made to him by any persons whomsoever”; and that at no time did the United States Attorney have a conversation with appellant in which he promised that if appellant would plead guilty, he would not “get over twenty-five years”, or inhvhich he threatened to demand the death penalty if appellant stood trial. As “conclusions of law” the court held that appellant “has not sustained the burden of proving that he was denied the right of assistance of counsel for his defense” or “that he had not voluntarily entered pleas of guilty”; and further that appellant, “by his acts and conduct, intelligently, competently and intentionally waived his right of assistance of counsel”. If appellant’s right under the Sixth Amendment to assistance of counsel was violated or if his plea of guilty was coerced or induced by deception upon the part of the Government officials, then it was the duty of the district court to order his release upon a writ of habeas corpus. Walker v. Johnston, 1941, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830; Smith v. O’Grady, 1941, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859; Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Johnson v. Zerbst, 1938, 304 U.S. 458, 467-469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461. “It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of the court carries with it a presumption of regularity” and the prisoner is under the burden of proving by a preponderance of evidence the facts which he alleges entitle him to a discharge. Johnson v. Zerbst, supra, and Walker v. Johnston, supra. At a preliminary hearing before the United States Commissioner appellant was represented by" }, { "docid": "15852434", "title": "", "text": "the second time, for a writ of habeas corpus. In view of the previous proceedings in the District Court and the disposition thereof, I entertained the present petition — notwithstanding that in the ordinary course such a petition addressed to an individual judge of the Court of Appeals is denied, the appropriate procedure being to address the same to the District Court or to one of its judges. Brosius v. Botkin (1940), 72 App.D.C. 29, 110 F.2d 49. Upon the ground, among others, that the petition for a writ of habeas corpus fails to state facts which entitle Quantz to the issuance of a writ, the Government opposes the same. The question thus raised is whether or not, assuming the truth of well-pleaded allegations of the petition, they show that there was in the criminal proceeding such a denial of a right or rights guaranteed a defendant in a criminal case by the Constitution as to deprive the District Court of jurisdiction to impose sentence. That is the sole question before me. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L. Ed. 830 (1941). Even if I should find error in the conduct of the criminal proceeding, I -cannot under a petition for a writ of habeas corpus collaterally attacking the jurisdiction of the District Court in that proceeding, set the judgment aside unless the error reaches the level of a deprivation of ■some right guaranteed by the Constitution. Matters of error not reaching such a level are for determination in an appellate, not in a habeas corpus, proceeding. Smith v. United States (1950), 88 U.S.App.D.C. 80, 187 F.2d 192. Counsel for Quantz urged that the petition for a writ of habeas corpus should \"be considered in connection with a transcript of the criminal proceeding. The Government opposed. After hearing argument on that subject, I reached the view that in the absence of a transcript of the criminal proceeding I could not satisfactorily pass upon the sufficiency of the allegations of the petition for a" }, { "docid": "15852435", "title": "", "text": "304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L. Ed. 830 (1941). Even if I should find error in the conduct of the criminal proceeding, I -cannot under a petition for a writ of habeas corpus collaterally attacking the jurisdiction of the District Court in that proceeding, set the judgment aside unless the error reaches the level of a deprivation of ■some right guaranteed by the Constitution. Matters of error not reaching such a level are for determination in an appellate, not in a habeas corpus, proceeding. Smith v. United States (1950), 88 U.S.App.D.C. 80, 187 F.2d 192. Counsel for Quantz urged that the petition for a writ of habeas corpus should \"be considered in connection with a transcript of the criminal proceeding. The Government opposed. After hearing argument on that subject, I reached the view that in the absence of a transcript of the criminal proceeding I could not satisfactorily pass upon the sufficiency of the allegations of the petition for a writ. Therefore, acting under § 753 of Title 28, U.S.C., I ordered the court reporter to transcribe the criminal proceeding at the expense of the United States and to deliver the transcript to me; that has been done. In determining the sufficiency of the allegations of the petition for a writ, I have treated the full contents of the transcript as a part of the petition for the writ. The allegations of the petition, supplemented by the transcript, are to the following effect: 1.' The trial judge, in the presence of the jury, evidenced spleen and hostility against Quantz’ counsel, at the outset by chiding him •concerning tardiness in attendance upon the court, and throughout the trial by the nature and manner of the trial judge’s rulings. Particular reference is made in this connection to pages 44, 45, 46, 58, and 72 of the transcript. 2. The trial judge refused to allow counsel for Quantz to make certain offers of proof. Particular reference in this connection is made to pages 48, 49, 58, 59, and" } ]

[ { "docid": "15595606", "title": "", "text": "conspiracy sold well in excess of 100 grams of heroin, it neither mentioned guideline § IB 1.3 — which allows an upward adjustment to a defendant’s offense level based on conduct “for which the defendant would otherwise be accountable” — nor contained any discussion of whether Ruiz’s offense level should be increased due to the conduct of co-conspirators. After describing the conspiracy and Ruiz’s conduct, the PSR merely concluded that “pursuant to statutory requirements, the guideline imprisonment range becomes the mandatory minimum sentence of 10 years.” Although Ruiz filed an objection to a statement in the PSR that related to her criminal history score, she did not object to any other factual information in the PSR or to the PSR’s conclusion that the 10-year statutory minimum applied. At the June 19, 1992, sentencing hearing Ruiz acknowledged that a 10-year minimum applied. Without making separate findings regarding either the amount of heroin involved in the conspiracy or the amount of heroin attributable to Ruiz, the court adopted the PSR, sentenced Ruiz to 10 years in prison followed by 8 years of supervised release, and ordered her to pay a $50.00 special assessment. Ruiz now argues that the district court erred in imposing a 10-year sentence, erred in failing to make a specific finding regarding the amount of heroin for which she was responsible, and erred in failing to satisfy itself at the rearraignment that her plea was accurate with respect to the amount of heroin for which she would be held responsible at sentencing. Since Ruiz failed to object to either the PSR or the district court’s sentence (and in fact agreed that the 10-year statutory minimum applied), the scope of our review is severely limited; we will not reverse unless we find plain error. Crim.R.Fed.P. 52(b); United States v. Calverley, 37 F.3d 160 (5th Cir.1994) (en banc). See also United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir.1994). We recently articulated the elements of the plain error standard and explained why it is so rigorous: One of the most familiar procedural rubrics in the administration of justice is the" } ]

[ { "docid": "22072858", "title": "", "text": "officer completed a Pre-Sentence Investigation Report (PSR). Of relevance here, the PSR recommended a heightened offense level of 31 and criminal-history category of VI based on the finding that Neal was an armed career criminal who possessed the two firearms “in connection with a crime of violence or a controlled substance offense.” See U.S.S.G. § 4B1.4(b)(3)(A) & (c)(2). Specifically, the PSR found that “the defendant possessed the firearms along with controlled substances, therefore the defendant is deemed to have used or possessed the firearms in connection with a crime of violence or a controlled substance offense.” Neal objected to application of the enhancements in § 4B1.4(b)(3) & (c)(2). However, after a multi-part sentencing hearing, the district court overruled all objections and adopted the recommendations of the PSR, resulting in a Guidelines sentencing range of 188-235 months. The district court selected from the low end of this range and imposed a 188-month sentence. Neal now appeals, arguing that the district court erroneously calculated his Guidelines range because simple possession of drugs is not a “controlled substance offense” for purposes of the Guidelines enhancements in § 4B1.4(b)(3) & (c)(2). II The parties dispute the appropriate standard of review. The government contends that Neal failed to preserve the specific issue raised now on appeal and asks this Court to apply plain-error review. See United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir.2003) (“When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only.”). Neal counters that his objections were sufficient to preserve the issue. We agree. To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir.2000). Here, Neal raised the following complaint in his written objections to the PSR: 2. Page 4 ¶ 20, defendant objects to the Probation Office’s finding that, pursuant to U.S.S.G. § 4B1.4(A), defendant should be considered an armed career criminal in that he" }, { "docid": "22210217", "title": "", "text": "responsibility. The sentencing guideline range for a total offense level of 28 is 78 to 97 months. The court sentenced Ocana to a 90 month term of imprisonment and a three year term of supervised release. DISCUSSION Ocana raises three issues on appeal. First, Ocana argues that the district court erred in increasing her base offense level based on conduct that occurred after she was convicted. Second, Ocana challenges the district court’s finding of a two-level enhancement for role in the offense based upon evidence of Ocana’s alleged post-conviction conduct. Finally, Ocana contends that the district court erred in relying on her alleged co-conspirators testimony because it did not have a sufficient indicia of reliability. A. Standard of Review This court normally reviews the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline. United States v. Hernandez-Guevara, 162 F.3d 863, 876 (5th Cir.1998). Failure to object to either the PSR or the district court’s sentence results in review for plain error. See United States v. Ruiz, 43 F.3d 985, 988 (5th Cir.1995). In the present case, the Government urges this court to review the district court’s application of the sentencing guidelines for plain error because Ocana did not raise the same objections in the district court that she raises in this appeal. We find that Ocana did make written objections to the PSR. The thud addendum to the PSR acknowledges Ocana’s objections to the second addendum to the PSR regarding the increase in her base offense level and the adjustment for her role in the offense. Oeana’s objection to the second addendum’s recommendation on her base offense level was as follows: “The defendant asserts that the information in the Second Addendum to the Presentence Report is not relevant conduct impacting her sentence of conviction. The defendant denies the ownership or any responsibility for the marihuana that Norma Cervantes and Ricardo Flores were" }, { "docid": "22210226", "title": "", "text": "testified that Ocana recruited them for trips in July, September and November. Therefore, Ocana was participating in drug transactions bimonthly. Based on the close temporal proximity and regularity of the offenses the district court did not clearly err in finding that the April 1997 offense and the offenses involving Cervantes and Flores were part of the same course of conduct. Ocana relies on our decision in United States v. Lara, 975 F.2d 1120, 1128 (5th Cir.1992), for the proposition that a sentencing enhancement for post-conviction conduct should be applied to the crime committed while on release and not the original crime for which the defendant is currently being sentenced. However, in Lara the sentence enhancements were made by the district court pursuant to 18 U.S.C. § 3147 and USSG § 2J1.7, not under USSG § 1B1.3 which allows for adjustment of base offense level for post conviction conduct under certain circumstances. At the sentencing hearing the district court heard and weighed the testimony of Agent Andrews, Cervantes, and Flores and concluded that Ocana’s alleged participation in drug transactions involving Cervantes and Flores were part of the same course of conduct as the offense of conviction. After a careful review of the record we conclude that the district court’s finding was not clearly erroneous. Thus, based on the finding that the post conviction conduct was relevant conduct under § 1B1.3 the district court properly applied the guidelines and adjusted Ocana’s base offense level upward to include the marihuana found in the possession of Cervantes and Flores in November 1997. C. Role in the Offense The district court also adopted the PSR’s recommendation that Ocana receive a two-level upward adjustment for role in the offense. The original PSR contained no adjustment for role in the offense. The probation officer added this recommendation for a two level enhancement based solely on Ocana’s post-conviction conduct. The appellant argues that the district court erred in determining her role in the offense based solely on the facts of the November 1997 offense which as post-conviction conduct had no connection to the offense for which she was" }, { "docid": "23303050", "title": "", "text": "conduct to possess with intent to distribute heroin” until the date of his second arrest. King filed a response to the PSR Addendum. He stopped arguing that he did not reside at the Fairlane Avenue address. But he continued to argue that his involvement in the drug conspiracy ended on July 3, 2012, and that the drugs and paraphernalia found at his residence were related only to his personal drug use. He argued that any possession of a firearm months after he stopped participating in the conspiracy was not connected to his offense of conviction. He also argued that the district court’s application of a firearm enhancement would subject him to a mandatory minimum sentence by making the safety valve unavailable, which would violate AUeyne. At sentencing, after giving the Government and King the opportunity to present further evidence and objections, the district court overruled King’s objections for the reasons set out in the PSR Addendum. Accordingly, the district court imposed a two-level enhancement to his offense level based on possession of a firearm during the offense, and it did not apply the safety valve. It calculated King’s Sentencing Guidelines imprisonment range as 60 to 71 months, and ultimately sentenced him to 60 months of imprisonment, the mandatory minimum sentence. Standard op Review “The district court’s determination that § 2Dl.l(b)(l) applies is a factual finding reviewed for clear error.” United States v. Ruiz, 621 F.3d 390, 396 (5th Cir.2010) (per curiam). “A factual finding is not clearly erroneous if it is plausible, considering the record as a whole.” Id. Moreover, “a district court is permitted to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error as well.” United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.2006). Citing United States v. Zapata-Lara, 615 F.3d 388 (5th Cir.2010), King argues that we should apply de novo rather than clear error review. In Zapata-Lara, we held that de novo review applied because the defendant’s argument did “not concern the specifics of the factfinding, but, rather, whether the facts found [were] legally sufficient to support the enhancement.”" }, { "docid": "23209476", "title": "", "text": "See Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (defining a “protective sweep” as “a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others”). The observations in question were not, therefore, made during an illegal search. Accordingly, Hicks has shown no error on the part of the district court in denying his motion to suppress. V. APPLICATION OF THE SECOND-DEGREE MURDER GUIDELINE Hicks next contends that the district court erred at sentencing when it overruled his objection to the use of U.S.S.G. § 2A1.2, the second-degree murder guideline, to increase his offense level. Specifically, Hicks alleges that the district court erred by: (1) using the second-degree murder guideline instead of the manslaughter guideline; and (2) applying the second-degree murder guideline without first requiring proof beyond a reasonable doubt that Hicks committed second-degree murder. This court reviews a district court’s factual findings during sentencing for clear error and its interpretation of the Sentencing Guidelines, including its application of the cross-reference provisions of § 2K2.1(c), de novo. See United States v. Levario-Quiroz, 161 F.3d 903, 905 (5th Cir.1998). “A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline.” United States v. Ocana, 204 F.3d 585, 588 (5th Cir.2000). Hicks contends that the district court improperly applied U.S.S.G. § 2K2.1(c)(l)(B)’s cross-reference provision when it used the guideline for second-degree murder (U.S.S.G. § 2A1.2) rather than the guideline for involuntary manslaughter (U.S.S.G. § 2A1.4) to determine his offense level. Under U.S.S.G. § 2K2.1, which applies to federal firearms offenses, “[i]f the defendant used or possessed any firearm or ammunition in connection with the commission ... of another offense [and] ... if death resulted,” a district court should apply “the most analogous [homicide] offense guideline” to determine the defendant’s base offense level, provided that the resulting offense level is greater than the otherwise-applicable level under § 2K2.1. U.S.S.G. § 2K2.1(c)(l)(B) (2002). After conducting a hearing" }, { "docid": "22210227", "title": "", "text": "in drug transactions involving Cervantes and Flores were part of the same course of conduct as the offense of conviction. After a careful review of the record we conclude that the district court’s finding was not clearly erroneous. Thus, based on the finding that the post conviction conduct was relevant conduct under § 1B1.3 the district court properly applied the guidelines and adjusted Ocana’s base offense level upward to include the marihuana found in the possession of Cervantes and Flores in November 1997. C. Role in the Offense The district court also adopted the PSR’s recommendation that Ocana receive a two-level upward adjustment for role in the offense. The original PSR contained no adjustment for role in the offense. The probation officer added this recommendation for a two level enhancement based solely on Ocana’s post-conviction conduct. The appellant argues that the district court erred in determining her role in the offense based solely on the facts of the November 1997 offense which as post-conviction conduct had no connection to the offense for which she was convicted. Sentencing guideline § 3B1.1 allows for a sentence enhancement based on the defendant’s role in the criminal activity. Contrary to the appellant’s argument, post-conviction conduct may be considered in determining a defendant’s role in the offense, if that post-conviction conduct is determined to be relevant conduct under the sentencing guidelines. The introductory commentary for section 3B1.1 instructs that “the determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of 1B1.3 (Relevant Conduct) ... and not solely on the basis of elements and acts cited in the count of conviction.” U.S.S.G. § 3B1.1 introductory commentary. Also, this court has held that conduct which is the basis for an upward adjustment made pursuant to section 3B1.1 must be “anchored to the transaction, however we will take a common-sense view of just what the outline of that transaction is. It is not the contours of the offense charged that defines the outer limit of the transaction; rather it is the contours of the underlying scheme" }, { "docid": "22210231", "title": "", "text": "determining Ocana’s base offense level and her role in the offense. Ocana argues that Cervantes and Flores testimony did not meet the standard for reliability as set forth in USSG § 6A1.3, because their testimony was inconsistent with their prior statements, and they both had motive to testify falsely. This court reviews a district court’s determinations of witness credibility for clear error. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.1996). For the purposes of sentencing the district court may consider information without regard to its admissibility. Id. Furthermore, the defendant bears the burden of demonstrating that the information the district court relied on is “materially untrue”. United States v. Young, 981 F.2d 180, 185 (5th Cir.1992). Our review of the record confirms Ocana’s claim that the testimony of Cervantes and Flores contains multiple inconsistencies. Cervantes and Flores inconsistent testimony alone, however, is not enough to demonstrate that this testimony upon which the district court relied is materially untrue. The inconsistent pattern of their testimony in and of itself does not command that we ignore the district court’s appreciation of their testimony as reliable. Given our highly deferential standard of review for factual determinations, we cannot hold that the district court’s credibility determination was clearly erroneous. CONCLUSION We affirm the district court’s consideration of post-conviction conduct to adjust Ocana’s base offense level pursuant to USSG § 1B1.3. We also affirm the district court’s upward adjustment of Ocana’s sentence for role in the offense, and the district court’s reliance on the co-eonspirator’s testimony at the sentencing hearing. AFFIRMED. . Ocana was indicted June 10, 1998 for her part in this activity. The Government later dropped the charges. At oral argument the prosecutor stated that the reason he dropped the indictment was that any sentence rendered for the November 1997 offense would have run concurrent to the sentence received in the present case. . Also Ocana’s objection used the term \"relevant conduct”, which is the identical terminology used in USSG § 1B1.3. . There is some dispute as to whether Florida was the intended destination for the April 1997 offense. Ocana's" }, { "docid": "22210216", "title": "", "text": "and Cervantes informed Agent Andrews, and testified that Ocana had recruited them to transport marihuana to Florida on at least two other occasions before they were apprehended by the border patrol in November 1997. Cervantes and Flores testified that Ocana told them to rent a van, and take their kids on the trip to make it look like a family vacation. They claimed that on all of these trips they drove the van to Winter Garden, Florida, found a hotel, and then contacted Ocana who would fly to Florida and meet them at the hotel. They stated that Ocana would pick up the van from them at the hotel and complete the final delivery of the drugs. After hearing this testimony the court overruled Ocana’s objections and adopted the findings of the second addendum to the PSR. The court accepted the inclusion of the 48 kilograms of cocaine in the determination of the base offense level, the two-level enhancement for Ocana’s role in the offense, and the rejection of the three-level reduction for acceptance of responsibility. The sentencing guideline range for a total offense level of 28 is 78 to 97 months. The court sentenced Ocana to a 90 month term of imprisonment and a three year term of supervised release. DISCUSSION Ocana raises three issues on appeal. First, Ocana argues that the district court erred in increasing her base offense level based on conduct that occurred after she was convicted. Second, Ocana challenges the district court’s finding of a two-level enhancement for role in the offense based upon evidence of Ocana’s alleged post-conviction conduct. Finally, Ocana contends that the district court erred in relying on her alleged co-conspirators testimony because it did not have a sufficient indicia of reliability. A. Standard of Review This court normally reviews the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline. United States v. Hernandez-Guevara," }, { "docid": "23572717", "title": "", "text": "located on a window sill, and a Lorcin .380 caliber pistol found in a bag belonging to Houston. Wilson then told the arresting officers that she had a Jennings .32 caliber pistol in her purse. A search of the room yielded a handbook on forging documents, a computer, twelve grams of marijuana, a marijuana cigarette, and various drug paraphernalia. Houston, who had been previously convicted of statutory rape, possession of a controlled substance, and forgery, disclosed to agents that he owned the Ruger and Lorcin pistols. Houston was indicted on June 20, 2001 in federal district court for being a felon in possession of two firearms. 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). He pleaded guilty to the one-count indictment, which named the Ruger and Lorcin pistols, on October 12, 2001 without the benefit of a plea agreement. During a presentence interview with the probation office, Houston accepted responsibility for the offense, explaining that he “only had the pistol for protection since [he and his wife] were coming to a city with such a high crime rate,” and that his “wife ha[d] been the victim of two brutal rapes as a young adult woman.” The Presentence Investigation Report (“PSR”) recommended that the district court: 1) set Houston’s base-offense level at 20 because his prior conviction for statutory rape constituted a “crime of violence”; 2) enhance Houston’s offense level by two because the offense “involved” three firearms; and 3) enhance Houston’s offense level by four because he possessed the firearms “in connection with” another felony offense. Over Houston’s objections, the district court adopted the PSR’s recommendations, and sentenced Houston to a 96-month term of imprisonment, a three-year term of supervised release, a $3,000 fine, and a $100 special assessment fee. Houston timely appeals :the district court’s application of the sentencing guidelines. II. STANDARD OF REVIEW “A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline.” United States v. Ocana, 204 F.3d 585, 588 (5th Cir.2000). A district court’s interpretation or application" }, { "docid": "16596386", "title": "", "text": "foregoing evidence, a reasonable juror could conclude Stevens had an agreement with Sinclair to defraud SNB and conceal the sale of Wintermute’s loans to SNB, Stevens knew of the agreement, and he knowingly became part of the agreement. See Pizano, 421 F.3d at 719. We therefore affirm Stevens’s conviction. D. Alleged Sentencing Errors Stevens alleges several sentencing errors. Stevens made numerous objections to the factual allegations contained in his Presentence Investigation Report (PSR) upon receiving the PSR. At sentencing, Stevens, through his attorney, attacked the PSR, stating “this Presen-tence Report is inaccurate across the board, and it shouldn’t be that-what the court is being guided by in sentencing this individual.” The government did not respond to Stevens’s specific objections found in the PSR’s addendum or his broad objection at sentencing. We review de novo the district court’s construction and application of the Sentencing Guidelines, and we review for clear error its factual findings regarding enhancements. United States v. Jourdain, 433 F.3d 652, 658 (8th Cir.2006). Without any effort by the government to prove any of the challenged PSR factual statements, the district court summarily overruled Stevens’s objections. The district court did not make any factual findings, conduct any 18 U.S.C. § 3553(a) analysis, or “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). Presumably relying on the factual allegations and Guidelines calculations contained in the PSR, the district court sentenced Stevens to 60 months’ imprisonment. “A sentencing court may accept the facts in a PSR as true unless the defendant objects to specific factual allegations.” United States v. Sorrells, 432 F.3d 836, 838 (8th Cir.2005). When the defendant so objects and the relevant responsive evidence has not already been produced at trial, “the government must present evidence at the sentencing hearing to prove the existence of the disputed facts.” United States v. Poor Bear, 359 F.3d 1038,1041 (8th Cir.2004) (citation omitted). If the government fails in its burden and the district court sentences the defendant based on the allegations of uncharged conduct set forth in the PSR, which conduct increased the Guidelines" }, { "docid": "21934314", "title": "", "text": "spent twenty minutes taking photographs of E.P. for her Backpage ad. Furthermore, Trejo, an adult prostitute who spent time with E.P., testified that E.P.’s manner of talking and “approaching] certain things” made her seem younger “than what she said she was.” In light of that, the jury could have reasonably concluded that five or six interactions were “a reasonable opportunity” for Moore to have observed E.P., which, under § 1591(c), satisfied § 1591(a)’s knowledge requirement. There was sufficient evidence to convict her on Count 2. E. Sentencing Issues Blake and Moore also raise several challenges to their sentences. “We review the district court’s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.” United States v. Bane, 720 F.3d 818, 824 (11th Cir. 2013). 1. The Calculation of Blake’s Sentence Because the victims were over the age of fourteen but below the age of eighteen, the presentence investigation report noted that Blake’s base offense level was 30. See United States Sentencing Guidelines § 2G1.3(a)(2) (Nov. 2014) (citing 18 U.S.C. § 1591(b)(2)). After applying a number of enhancements, the PSR calculated his adjusted offense level as 51, but it was reduced to 43 because that is the maximum offense level permitted by the guidelines. See id. § 5A cmt. n.2. With a criminal history category of IV, the advisory guidelines range was life. See id. § 5A. Blake made several objections to his PSR, including two that are relevant to his appeal. First, he contended that the PSR should not have applied a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) because he did not “unduly influence” T.H. and E.P. to engage in “prohibited sexual conduct.” Second, he contended that the PSR had erroneously applied a two-level enhancement under § 2G1.3(b)(4), which applies to offenses “involving] the commission of a sex act or sexual conduct.” At the sentence hearing the district court sustained some of Blake’s objections but overruled his objections to the § 2G1.3(b)(2)(B) and § 2G1.3(b)(4) enhancements. The result was that Blake’s adjusted offense level remained at 43 and his criminal history score stayed" }, { "docid": "22210214", "title": "", "text": "to dismiss count two of the indictment and recommend a sentence at the low end of the applicable guideline range. The initial presentence report (“PSR”) was submitted September 26, 1997 and determined that the total offense level was 21, which was based on an offense level of 24 for possession of 90 kilograms of marihuana and a three-level decrease for acceptance of responsibility. This initial determination equaled a guideline range of 37-46 months imprisonment. In November 1997, border patrol agents stopped Ricardo Flores (“Flores”), Norma Salina Cervantes (“Cervantes”), and Cervantes’s three sons. The border patrol discovered 48 kilograms of marihuana. Cervantes immediately informed the border patrol and FBI that the drugs belonged to Ocana, who had hired them to transport the marihuana (“November 1997 offense” or “post-conviction conduct”). On June 5, 1998 the government provided ex parte notice to the court concerning alleged misconduct of the defendant. Based on the information about the November 1997 offense the probation officer filed an addendum to the PSR (“second addendum”) recommending that Ocana be sentenced based on a total offense level of 28. This total offense level included a base offense level of 26, a figure that included the additional 48 kilograms of marihuana. In the second addendum the PSR also recommended a two-level upward adjustment for role in the offense and recommended denying the three-level decrease for acceptance of responsibility. Ocana’s attorney filed objections to the second addendum to the PSR. Ocana argued that the November 1997 offense was not relevant to her sentencing, and she also denied ownership or responsibility for the marihuana that was found by the border patrol. The probation officer filed a third addendum to the PSR in response to Ocana’s objections. The third addendum to the PSR stated that pursuant to lB1.3(a)(2) the November 1997 offense was part of the same course of conduct as the offense for which Ocana plead guilty, and therefore was required to be considered in determining Ocana’s sentence. At the sentencing hearing FBI Agent Rob Andrews (“Agent Andrews”), Flores, and Cervantes were called to testify. On the morning of the hearing Flores" }, { "docid": "22210220", "title": "", "text": "written response by the probation officer that referenced § 1B1.3(a)(2). The district court was clearly notified of the grounds upon which Ocana’s objections were being made. See Krout, 66 F.3d at 1434 (a party should raise a claim of error in a manner that allows the district court to correct itself). Therefore, we conclude that Ocana sufficiently raised the issues which she now appeals, and we will review her claims under the normal standard of review for Sentencing Guideline issues. B. Base Offense Level Ocana argues that the district court erred in considering the November 1997 offense in the calculation of her base offense level because this conduct occurred after her conviction. The PSR stated that Ocana’s base level offense was increased pursuant to USSG § 1B1.3. Under § 1B1.3 district courts are permitted to consider unadjudicated offenses which occur after the offense of conviction for sentencing purposes if the unadjudicated offense is “relevant conduct”. In order for an unad-judicated offense to be “relevant conduct” it must be part of the same course of conduct, common scheme or plan as the offense of conviction. United States v. Vital, 68 F.3d 114, 118 (5th Cir.1995). The district court found that the November 1997 offense was part of the same course of conduct as the April 1997 incident for which Ocana was convicted. A finding by the district court that unadjudicated conduct is part of the same course of conduct or common scheme or plan is a factual determination subject to review by this court under the clearly erroneous standard. See Vital, 68 F.3d at 118. Therefore, in order for Ocana to demonstrate that the district court incorrectly applied the sentencing guidelines under § 1B1.3 she must show that the district court’s finding that the offenses involving Cervantes and Flores were part of the same course of conduct as the April 1997 offense was a clearly erroneous finding. Offenses qualify as part of the same course of conduct if they are “sufficiently connected or related to each other to warrant a conclusion that they are part of a single episode, spree, or" }, { "docid": "22072861", "title": "", "text": "error. For preservation pur poses, we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original. The central inquiry is the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief. See Medina-Anicacio, 325 F.3d at 642 (“[Ojnce a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”). Here, it is sufficiently clear that Neal objected to his possession conviction being deemed a “controlled substance offense.” The second paragraph of Neal’s written response to the PSR, set forth supra, specifically objects to the PSR’s finding that the firearms were possessed in connection with a “controlled substance offense,” and cites to the relevant definitions section of the Guidelines for support. While the district court may have subsequently focused its analysis on the spatial relationship between the drugs and the firearms, we note that Neal raised this “proximity” objection explicitly and separately in the first paragraph of his written response. As such, it is reasonable to infer that the second paragraph was intended to raise a different objection, one based on the definition of a “controlled substance offense.” Moreover, during the sentencing hearing, Neal emphasized that his “predicate offense” was simple possession of a small amount of hydrocodone. While this statement standing alone may have been insufficient, we conclude that the combination of Neal’s oral and written objections was sufficient to preserve error in this case. See Ocana, 204 F.3d at 589. Because Neal preserved error, we exercise our typical review of sentencing decisions: We first “consider whether the district court committed a significant procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, or selecting a sentence based on clearly erroneous facts.” United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir.2009) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “If the sentence is procedurally sound, we then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.”" }, { "docid": "22210215", "title": "", "text": "total offense level of 28. This total offense level included a base offense level of 26, a figure that included the additional 48 kilograms of marihuana. In the second addendum the PSR also recommended a two-level upward adjustment for role in the offense and recommended denying the three-level decrease for acceptance of responsibility. Ocana’s attorney filed objections to the second addendum to the PSR. Ocana argued that the November 1997 offense was not relevant to her sentencing, and she also denied ownership or responsibility for the marihuana that was found by the border patrol. The probation officer filed a third addendum to the PSR in response to Ocana’s objections. The third addendum to the PSR stated that pursuant to lB1.3(a)(2) the November 1997 offense was part of the same course of conduct as the offense for which Ocana plead guilty, and therefore was required to be considered in determining Ocana’s sentence. At the sentencing hearing FBI Agent Rob Andrews (“Agent Andrews”), Flores, and Cervantes were called to testify. On the morning of the hearing Flores and Cervantes informed Agent Andrews, and testified that Ocana had recruited them to transport marihuana to Florida on at least two other occasions before they were apprehended by the border patrol in November 1997. Cervantes and Flores testified that Ocana told them to rent a van, and take their kids on the trip to make it look like a family vacation. They claimed that on all of these trips they drove the van to Winter Garden, Florida, found a hotel, and then contacted Ocana who would fly to Florida and meet them at the hotel. They stated that Ocana would pick up the van from them at the hotel and complete the final delivery of the drugs. After hearing this testimony the court overruled Ocana’s objections and adopted the findings of the second addendum to the PSR. The court accepted the inclusion of the 48 kilograms of cocaine in the determination of the base offense level, the two-level enhancement for Ocana’s role in the offense, and the rejection of the three-level reduction for acceptance of" }, { "docid": "22210213", "title": "", "text": "CARL E. STEWART, Circuit Judge: Flora Alicia Ocana appeals the sentence she received after pleading guilty to conspiracy to possess with intent to distribute approximately 90 kilograms of marihuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(c). Ocana challenges the district court’s enhancement of her sentence based on post-conviction conduct. This post-conviction conduct led to an increase in Ocana’s base level offense, and a sentence enhancement for role in the offense. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On April 19, 1997 Flora Alicia Ocana (“Ocana”) was arrested after a traffic stop and found to be in possession of 90 kilograms of marihuana. In May 1997, Ocana and her co-defendant Keenan Stroud Ben-net were indicted on one count of conspiracy to possess marihuana with intent to distribute, and a second count of possession of marihuana with intent to distribute. On July 25, 1997 Ocana plead guilty to the first count of the indictment. Ocana also agreed to provide a truthful rendition of the facts for the probation department in exchange for the government’s agreement to dismiss count two of the indictment and recommend a sentence at the low end of the applicable guideline range. The initial presentence report (“PSR”) was submitted September 26, 1997 and determined that the total offense level was 21, which was based on an offense level of 24 for possession of 90 kilograms of marihuana and a three-level decrease for acceptance of responsibility. This initial determination equaled a guideline range of 37-46 months imprisonment. In November 1997, border patrol agents stopped Ricardo Flores (“Flores”), Norma Salina Cervantes (“Cervantes”), and Cervantes’s three sons. The border patrol discovered 48 kilograms of marihuana. Cervantes immediately informed the border patrol and FBI that the drugs belonged to Ocana, who had hired them to transport the marihuana (“November 1997 offense” or “post-conviction conduct”). On June 5, 1998 the government provided ex parte notice to the court concerning alleged misconduct of the defendant. Based on the information about the November 1997 offense the probation officer filed an addendum to the PSR (“second addendum”) recommending that Ocana be sentenced based on a" }, { "docid": "22173851", "title": "", "text": "the eight-level 2001 sentencing guideline apply was a concession that the California weapon possession charge was, in fact, an aggravated felony. Thus, the Government maintains that this Court should review the question of whether the weapon possession charge is an aggravated felony under plain error review because the district court never had the opportunity to rule on Medina’s claim. Generally, this Court reviews the district court’s application of the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.2001); United States v. Salter, 241 F.3d 392, 394 (5th Cir.2001). Arguments raised for the first time on appeal are subject to the plain error standard. Salter, 241 F.3d at 394. When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only. See United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.1994). Here, Medina’s written objection to the PSR clearly stated his position that his concealed dagger offense was “not an ‘aggravated felon/ ” under the proposed 2001 version of the sentencing guidelines. Because the 2000 and 2001 versions of the guidelines both incorporate § 1101(a)(43)’s definition of “aggravated felony”, Medina has raised the issue of whether his concealed dagger offense is an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43). Moreover, the addendum to the PSR specifically addressed Medina’s objection, stating that “Possession of a Deadly Weapon is an aggravated felony by definition,” and that “Possession of a Deadly Weapon meets the definition of ‘crime of violence’ since possessing the weapon creates a substantial risk of physical force against the person or property of another.” The district court, therefore, considered whether Medina’s concealed dagger offense constituted an “aggravated felony” under 8 U.S.C. § 1101(a)(43). Medina’s request for an eight-level increase is more properly construed as an argument in the alternative: if the court were to find that the prior California conviction was an aggravated felony, then Medina argued that it should only result in an eight-level increase under the 2001" }, { "docid": "23572718", "title": "", "text": "rate,” and that his “wife ha[d] been the victim of two brutal rapes as a young adult woman.” The Presentence Investigation Report (“PSR”) recommended that the district court: 1) set Houston’s base-offense level at 20 because his prior conviction for statutory rape constituted a “crime of violence”; 2) enhance Houston’s offense level by two because the offense “involved” three firearms; and 3) enhance Houston’s offense level by four because he possessed the firearms “in connection with” another felony offense. Over Houston’s objections, the district court adopted the PSR’s recommendations, and sentenced Houston to a 96-month term of imprisonment, a three-year term of supervised release, a $3,000 fine, and a $100 special assessment fee. Houston timely appeals :the district court’s application of the sentencing guidelines. II. STANDARD OF REVIEW “A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline.” United States v. Ocana, 204 F.3d 585, 588 (5th Cir.2000). A district court’s interpretation or application of the sentencing guidelines is reviewed de novo and its factual findings for clear error. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc); United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999). III. ANALYSIS A. Enhancement for Prior Conviction of “crime of violence” The district court set Houston’s base-offense level at 20 on the grounds that his previous conviction for statutory rape constituted a “crime of violence.” The court, citing information garnered from Texas’s sex offender database, emphasized that Houston’s statutory rape victim had been only 14 years old. Section 2K2.1 of the sentencing guidelines sets forth base-offense levels for crimes involving the unlawful possession of a firearm, and imposes an enhanced base-offense level of 20 if the defendant has a previous felony conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A) (2001). Application Note 5 to § 2K2.1 refers to § 4B 1.2(a) and its Application Note 1 for the definition of “crime of violence.” U.S.S.G. § 2K2.1, cmt. n.5 (2001). Section 4B1.2(a) defines “crime of violence” as: [A]ny" }, { "docid": "22210219", "title": "", "text": "caught transporting.” Ocana’s objection to the PSR’s recommendation of an upward adjustment role in the offense was “that she did not have a role in the instant offense concerning Norma Cervantes and Ricardo Flores.” The purpose of requiring defendants to make timely objections to the PSR and actual sentence is “founded upon considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” Ruiz, 43 F.3d at 988 (quoting United States v. Calverley, 37 F.3d 160 (5th Cir.1994) (en banc)). Ocana’s objections fulfill this stated purpose. While she did not specifically cite to the USSG section which the PSR applied, she did make a general objection that notified the court of her disagreement with the use of the November 1997 offense in her sentencing, and gave the district court the opportunity to address the relevance of the unadjudicated conduct. Ocana’s objections to the PSR were in writing, and there was a written response by the probation officer that referenced § 1B1.3(a)(2). The district court was clearly notified of the grounds upon which Ocana’s objections were being made. See Krout, 66 F.3d at 1434 (a party should raise a claim of error in a manner that allows the district court to correct itself). Therefore, we conclude that Ocana sufficiently raised the issues which she now appeals, and we will review her claims under the normal standard of review for Sentencing Guideline issues. B. Base Offense Level Ocana argues that the district court erred in considering the November 1997 offense in the calculation of her base offense level because this conduct occurred after her conviction. The PSR stated that Ocana’s base level offense was increased pursuant to USSG § 1B1.3. Under § 1B1.3 district courts are permitted to consider unadjudicated offenses which occur after the offense of conviction for sentencing purposes if the unadjudicated offense is “relevant conduct”. In order for an unad-judicated offense to be “relevant conduct” it must be part of the same course of conduct," }, { "docid": "22210218", "title": "", "text": "162 F.3d 863, 876 (5th Cir.1998). Failure to object to either the PSR or the district court’s sentence results in review for plain error. See United States v. Ruiz, 43 F.3d 985, 988 (5th Cir.1995). In the present case, the Government urges this court to review the district court’s application of the sentencing guidelines for plain error because Ocana did not raise the same objections in the district court that she raises in this appeal. We find that Ocana did make written objections to the PSR. The thud addendum to the PSR acknowledges Ocana’s objections to the second addendum to the PSR regarding the increase in her base offense level and the adjustment for her role in the offense. Oeana’s objection to the second addendum’s recommendation on her base offense level was as follows: “The defendant asserts that the information in the Second Addendum to the Presentence Report is not relevant conduct impacting her sentence of conviction. The defendant denies the ownership or any responsibility for the marihuana that Norma Cervantes and Ricardo Flores were caught transporting.” Ocana’s objection to the PSR’s recommendation of an upward adjustment role in the offense was “that she did not have a role in the instant offense concerning Norma Cervantes and Ricardo Flores.” The purpose of requiring defendants to make timely objections to the PSR and actual sentence is “founded upon considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” Ruiz, 43 F.3d at 988 (quoting United States v. Calverley, 37 F.3d 160 (5th Cir.1994) (en banc)). Ocana’s objections fulfill this stated purpose. While she did not specifically cite to the USSG section which the PSR applied, she did make a general objection that notified the court of her disagreement with the use of the November 1997 offense in her sentencing, and gave the district court the opportunity to address the relevance of the unadjudicated conduct. Ocana’s objections to the PSR were in writing, and there was a" } ]

[ { "docid": "23277422", "title": "", "text": "JOHNSEN, Circuit Judge. The action is one for an injunction, accounting of profits, and damages, for using and disclosing an improvement in a poultry-picking device, which plaintiffs claimed to have discovered and kept a trade secret, but which they had revealed to defendant in alleged confidence during licensing negotiations with him. The district court held that plaintiffs could have no possible cause of action against defendant, because the discovery did not constitute a patentable invention and hence it was immaterial whether “the ideas involved had been confidentially conveyed”. This holding is erroneous. The rule in Missouri, as well as generally, is that, though a trade secret be unpatentable, it will nevertheless be protected from use or disclosure by one to whom it has been revealed in confidence. Restatement, Torts, § 757; Germo Mfg. Co. v. Combs, 209 Mo.App. 651, 678, 240 S.W. 872, 881; Godefroy Mfg. Co. v. Lady Lennox Co., Mo.App., 134 S.W.2d 140, 141; Luckett v. Orange Julep Co., 271 Mo. 289, 196 S.W. 740; A. O. Smith Corp. v. Petroleum Iron Works Co., 6 Cir., 73 F.2d 531, 538, 539; Id., 74 F.2d 934; American Dirigold Corp. v. Dirigold Metals Corp., 6 Cir., 125 F.2d 446, 452; Peabody v. Norfolk, 98 Mass. 452, 458, 96 Am.Dec. 664; Stewart v. Hook, 118 Ga. 445, 45 S. E. 369, 370, 63 L.R.A. 255; Salomon v. Hertz, 40 N.J.Eq. 400, 2 A. 379, 380, 381. “A trade secret may consist of any formula, [process,] pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Restatement, Torts, § 757, comment b. The discoverer’s property right in a trade secret ceases prospectively to exist—except perhaps as against the continuing obligation of a contract, such as a licensing agreement—once the matter has become public property by a general disclosure on the part of the discoverer, or by a legitimate discovery and rightful general disclosure on the part of another. Cf. American Dirigold Corp. v. Dirigold Metals Corp., 6 Cir., 125 F.2d 446," } ]

[ { "docid": "11615533", "title": "", "text": "furnished its customers. Said Mr. Justice Holmes of its tabulation: ‘It stands like a trade secret. The plaintiff has the right to keep the work which it has done, or paid for doing, to itself. The fact that others might do similar work, if they might, does not authorize them to steal the plaintiff’s.’ “The mere fact that the means by which a discovery is made are obvious, that experimentation which leads from known factors to an ascertainable but presently unknown result may be simple, we think cannot destroy the value of the discovery to one who makes it, or advantage the competitor who by unfair means, or as the beneficiary of a broken faith, obtains the desired knowledge without himself paying the price in labor, money, or machines expended by the discoverer. Facts of great value may, like the lost purse upon the highway, lie long unnoticed upon the public commons. Hundreds pass them by, till one more observant than the rest makes discovery. It is idle to say that, in the eyes of the law, interest may not in such case follow discernment.” (Emphasis added.) . See Note) Protection of Use of Trade Secrets, 1951, 64 Harv.L.Rev. 976, 977-979. Because, as a part of the defendants’ proof of knowledge in the trade of the principles claimed to be secret in this case, the Court allowed certain patent applications to be gone into, it should be stated that it is accepted doctrine that, while the granting of the patent may be considered an abandonment of any secrecy, there may, nevertheless, be secrecy in communicating the contents of the patent between the date of the application and the date of issue'. See, A. O. Smith Corp. v. Petroleum Iron Works Co., supra Note 49, 73 F. 2d at page 536; Id., 6 Cir., 1935, 74 F.2d 934, 935; Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 1936, 80 F.2d 912, 922-923; Reynolds v. Whitin Mach. Works, 4 Cir., 1948, 167 F.2d 78, 86; Sandlin v. Johnson, supra Note 27, 141 F.2d at page 661. See contra, Speaker v. Shaler" }, { "docid": "22305284", "title": "", "text": "secret information by means of a confidential relationship, they shall be held accountable for its use to their own advantage at the expense of the rightful possessor. See authorities collected below. Defendants argue that the heart of plaintiffs’ process was revealed by an expired patent, and that the improvements thereon were unpatentable applications of mechanical skill. This totally misconceives the nature of plaintiffs’ right. Plaintiffs do not assert, indeed cannot assert, a property right in their development such as would entitle them to exclusive enjoyment against the world. Theirs is not a patent, but a trade secret. The essence of their action is not infringement, but breach of faith. It matters not that defendants could have gained their knowledge from a study of the expired patent and plaintiffs’ publicly marketed product. The fact is that they did not. Instead they gained it from plaintiffs via their confidential relationship, and in so doing incurred a duty not to use it to plaintiffs’ detriment. This duty they have breached. Junker v. Plummer, 320 Mass. 76, 67 N.E.2d 667, 165 A.L.R. 1449, citing 4 Restatement, Torts § 757 and comment a (1939); Peabody v. Norfolk, 98 Mass. 452; Vulcan Detinning Co. v. American Can Co., 72 N.J.Eq. 387, 67 A. 339, 12 L.R.A..N.S., 102; Tabor v. Hoffman, 118 N.Y. 30, 23 N.E. 12, 16 Am.St.Rep. 740; Spiselman v. Rabinowitz, 270 App.Div. 548, 61 N. Y.S.2d 138, appeal denied 270 App.Div. 921, 62 N.Y.S.2d 608; Extrin Foods, Inc. v. Leighton, 202 Misc. 592, 115 N.Y. S.2d 429. See also Smith v. Dravo Corp., supra, 7 Cir., 203 F.2d 369; Schreyer v. Casco Products Corp., 2 Cir., 190 F.2d 921, certiorari denied 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683; 4 Restatement, Torts § 757 and comment a (1939); Nims, The Law of Unfair Competition and Trade-Marks §§ 141, 143a, 148 (4th Ed. 1947); Note, Protection and Use of Trade Secrets, 64 Harv.L.Rev. 976, 979, 982; cases collected in annotated note 170 A.L.R. 449, 488-490. As was stated by Vann, J., in Tabor v. Hoffman, supra, 118 N.Y. 30, 36, 37, 23 N.E. 12," }, { "docid": "9734450", "title": "", "text": "to a defense raised by AFW. Disregarding CA’s alleged failure to properly plead equitable estoppel, I find that the doctrine does not apply on these facts. Under Colorado law, the doctrine of equitable estoppel is employed to prevent manifest injustice. Committee for Better Health Care v. Meyer, 830 P.2d 884, 891 (Colo.1992). In order for the doctrine to apply, the party to be estopped must know the true facts and intend that its conduct be acted upon by the party asserting the defense. Dove v. Delgado, 808 P.2d 1270, 1275 (Colo.1991). Thus, it focuses on one party’s conduct or representations which induce another party, who does not know the true facts, to rely on the conduct or misrepresentations. Id.; In re Marriage of Dennin, 811 P.2d 449, 450 (Colo.App.1991). Here, AFW signed a contract containing CA’s representation that the SPO programs were trade secrets. CA is the party in possession of the true facts regarding its trade secrets, not AFW. It may not estop AFW. Nevertheless, CA argues that “numerous cases” have invoked the doctrine in these circumstances to bar a party from denying the existence of trade secrets. But see Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis.2d 202, 267 N.W.2d 242, 249 (1978) (estoppel based on contractual acknowledgement of trade secret status not appropriate in restraint of trade case for public policy reasons). These cases are distinguishable. In two, the party estopped had actually developed the trade secrets sought to be protected. See Ultra-Life Laboratories, Inc. v. Eames, 240 Mo.App. 851, 221 S.W.2d 224 (1949) (defendant’s poultry culling method); Germo Mfg. Co. v. Combs, 209 Mo.App. 651, 240 S.W. 872 (1922) (defendant’s poultry tonic). Furthermore, in most of the cases upon which CA relies, see also In re Uniservices, Inc., 517 F.2d 492 (7th Cir.1975), the court focused primarily on the defendant’s conduct over several years in acknowledging the proprietary nature of the product or process. CA is not in a similar position here. Therefore, I deny CA’s motion that AFW be equitably estopped from contesting the trade secret status of the SPO programs based on language" }, { "docid": "3427498", "title": "", "text": "* * * A process may, however, be maintained in secrecy and be entitled to equitable protection even though invention is not present. The cases which deal with the elements necessarily present in a proprietary process are careful to define such processes as resulting from invention, or discovery. [Citing cases.] Quite clearly discovery is something less than invention. Invention requires genius, imagination, inspiration, or whatever is the faculty that gives birth to the inventive concept. Discovery may be the result of industry, application, or be perhaps merely fortuitous. The discoverer, however, is entitled to the same protection as the inventor.” (Emphasis supplied.) A. O. Smith Corporation v. Petroleum Iron Works Co., 6 Cir., 1934, 73 F.2d 531, 538. Petition for rehearing denied in first case, and former opinion corrected in the second ease, 6 Cir., 74 F.2d 934. Cf. American Dirigold Corp. v. Dirigold Metals Corp., 6 Cir., 1949, 125 F.2d 446, at page 452. . “The mere fact that the means by which a discovery is made are obvious, that experimentation which leads from known factors to an ascertainable but prescntly unknown result may be simple, we think cannot destroy the value of the discovery to one who makes it, or advantage the competitor who by unfair means, or as the beneficiary of a broken faith, obtains the desired knowledge without himself paying the price in labor, money, or machines expended by the discoverer. Facts of great value may, like the lost purse upon the highway, lie long unnoticed upon the public commons. Hundreds pass them by, till one more observant than the rest makes discovery. It is idle to say that, in the eyes of the law, interest may not in such case follow discernment. * * * ” A. O. Smith Corporation v. Petroleum Iron Works Co., note 41, supra, 73 F.2d at pages 538, 539. Even so the quality of Sloan’s idea should not be underrated. Defendant’s witness Leroux, who qualified as an expert on mud systems, when asked upon cross-examination whether per chance he had originally thought of using the butterfly valve in mud control," }, { "docid": "6082742", "title": "", "text": "this Court recognized and approved the general rule that a trade secret consists of any formula, pattern, device or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. See also, Restatement, Torts, § 757. The essential elements of a cause of action for appropriation of a trade secret are (1) existence of a trade secret, (2) acquisition of the secret as a result of a confidential relationship, and (3) unauthorized use of the secret. Venn v. Goedert, 319 F.2d 812, 815 (8th Cir. 1963) ; Sandlin v. Johnson, supra ; Restatement, Torts, § 757. In general, the essence of the wrong is the obtaining of unjust enrichment and unfair competitive advantage through inequitable conduct. Servo Corp. of America v. General Electric Co., 393 F.2d 551, 555 (4th Cir. 1968) ; Atlantic Wool Combing Co. v. Norfolk Mills, Inc., 357 F.2d 866, 869 (1st Cir. 1966). It is well settled that an injunction may issue to prevent the unauthorized disclosure and use of trade secrets. See, for example, Imperial Chemical Industries, Ltd. v. National Distillers & Chemical Corp., 354 F.2d 459, 19 A.L.R.3d 492 (2nd Cir. 1965) ; Winston Research Corp. v. Minnesota Mining & Mfg. Co., 350 F.2d 134 (9th Cir. 1965) ; Sandlin v. Johnson, supra. This protection given to trade secrets is a shield, sanctioned by the courts, for the preservation of trust in confidential relationships; it is not a sword to be used by employers to retain employees by the threat of rendering them sub stantially unemployable in the field of their experience should they decide to resign. This shield is not a substitute for an agreement by the employee not to compete with his employer after the termination of employment. Basically, an employer may not restrict an employee’s future employment except by an agreement embodying reasonable terms. See, for example, the opinion of Judge Learned Hand in Harley & Lund Corp. v. Murray Rubber Co., 31 F.2d 932, 934 (2nd Cir. 1929). See also, Orkin Exterminating Co." }, { "docid": "22571626", "title": "", "text": "go further than it did in this respect is confirmed by the very status of Fine when he came to Colgate. At that time Fine was a joint inventor and patentee of ‘Rise.’ In other words, Fine was willing to be, and was knowingly placed by Colgate in work that was in direct competition with the work in which Fine had shared at Snell’s, resulting ultimately in his own patent. The very fact that Fine would do this should, per se, have raised in the minds of the representatives of Colgate, who arranged the employment of Fine, a feeling that he was entering upon a rather strange employment under the circumstances. It, therefore, was not enough for Colgate to say that they would see that Fine lived up to the limitations imposed by his contract with Snell. The weight of the credible evidence discloses that Colgate was far from being sufficiently avid to ascertain what those limitations really were, and to have Fine live up to them.” The principles of law applicable are well settled and are well stated in section 757 of the A.L.I. Restatement of Torts as follows: “One who discloses or uses another’s trade secret, without a privilege to do so, is liable-to the other if ***** “(c) he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the otilen * * Directly in point in support of the proposition thus stated are Peabody v. Norfolk, 98 Mass. 452, 96 Am.Dec. 664 (opinion by Gray, J.) ; Nulomoline v. Stromeyer, 3 Cir., 249 F. 597; Herold v. Herold China & Pottery Co., 6 Cir., 257 F. 911; A. O. Smith Corp. v. Petroleum Iron Works of Ohio, 6 Cir., 73 F.2d 531, 539; Ferroline Corp. v. General Aniline & Film Corp., 7 Cir., 207 F.2d 912, 921; Seismograph Service Corp. v. Offshore Raydist, D.C.E.D. La., 135 F.Supp. 342, 354; Lamont C. & Co." }, { "docid": "11615534", "title": "", "text": "the law, interest may not in such case follow discernment.” (Emphasis added.) . See Note) Protection of Use of Trade Secrets, 1951, 64 Harv.L.Rev. 976, 977-979. Because, as a part of the defendants’ proof of knowledge in the trade of the principles claimed to be secret in this case, the Court allowed certain patent applications to be gone into, it should be stated that it is accepted doctrine that, while the granting of the patent may be considered an abandonment of any secrecy, there may, nevertheless, be secrecy in communicating the contents of the patent between the date of the application and the date of issue'. See, A. O. Smith Corp. v. Petroleum Iron Works Co., supra Note 49, 73 F. 2d at page 536; Id., 6 Cir., 1935, 74 F.2d 934, 935; Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 1936, 80 F.2d 912, 922-923; Reynolds v. Whitin Mach. Works, 4 Cir., 1948, 167 F.2d 78, 86; Sandlin v. Johnson, supra Note 27, 141 F.2d at page 661. See contra, Speaker v. Shaler Co., 7 Cir., 1937, 87 F.2d 985, where the Court ruled that the filing of a patent was a disclosure: “The contents thereof were disclosed to the world by filing it in the patent office. Nothing therein could have remained confidential or secret.” At page 987' (Emphasis added). . American Potato Dryers, Inc., v. Peters, 4 Cir., 1950, 184 F.2d 165, 172. . Fowle v. Park, 1889, 131 U.S. 88, 97, 9 S.Ct. 658, 33 L.Ed. 67; Board of Trade of City of Chicago v. Christie Grain & Stock Co., 1905, 198 U.S. 236, 250, 25 S.Ct. 637, 49 L.Ed. 1031; Dr. Miles Medical Co. v. Park & Sons Co., 1911, 220 U.S. 373, 402, 31 S.Ct. 376, 55 L. Ed. 502. See cases cited in Notes 18 to 26 and 41 to 46, inclusive. . See eases cited in Notes 21 through 27, inclusive. . Peerless Pattern Co. v. Pictorial Review Co., 147 App.Div. 715, 132 N.Y.S. 37, 39, quoted with approval in Avocado Sales Co. v. Wyse, 1932, 122 Cal.App. 627 632, P.2d" }, { "docid": "22278356", "title": "", "text": "Products, Inc. v. Carter’s Ink Co., 306 F.2d 328 (2d Cir. 1962); Farrand Optical Co. v. United States, 175 F.Supp. 230 (S.D.N.Y.1959). Courts choose to protect this property right and its attendant competitive advantage with in camera proceedings because to disclose the trade secret publicly is said to dedicate it to the world and to destroy the owner’s proprietary control and the secret’s property value. John T. Lloyd Laboratories, Inc. v. Lloyd Brothers Pharmacists, Inc., 131 F.2d 703 (6th Cir. 1942); American Dirigold Corp. v. Dirigold Metals Corp., 104 F.2d 863 (6th Cir. 1939); A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F.2d 531 (6th Cir. 1934); Wheelabrator Corp. v. Fogle, 317 F.Supp. 633 (W.D.La.1970); Standard Brands, Inc. v. Zumpe, 264 F.Supp. 254 (E.D.La.1967); National Starch Products, Inc. v. Polymer Industries, Inc., 273 App.Div. 732, 79 N.Y.S. 2d 357 (1948). These cited eases employing in camera proceedings, however, have mainly involved secret processes, secret formulae, or secret designs. Although courts have traditionally protected trade secrets, the case law does not articulate what showing should be made by one seeking in camera treatment. For guidance on this subject, a look at Federal Trade Commission practice is instructive. In hearings before the Federal Trade Commission (FTC) certain commercial data has also received in camera treatment despite the fact that the FTC deems that these proceedings are required to be public. H. P. Hood & Sons, Inc., 58 F.T.C. 1184, 1186 (1961). To this end the FTC is guided by its rule of practice, 16 C.F.R. § 3.45 (1974), which states that in those unusual and exceptional circumstances when good cause is found documents and testimony offered in evidence may be placed in camera. Good cause is shown when the party seeking protection demonstrates that disclosure of the documentary evidence at issue will result in a clearly defined, serious injury to the person or corporation whose records are involved. H. P. Hood & Sons, Inc., 58 F.T.C. 1184 (1961); Graber Manufacturing Co. v. Dixon, 223 F.Supp. 1020 (D.D.C.1963); The Crown Cork & Seal Co., 71 F.T.C. 1714 (1967). The disclosure of" }, { "docid": "22701173", "title": "", "text": "of that stipulation is not clear, we address the question whether the data at issue here can be considered property for the purposes of the Taking Clause of the Fifth Amendment. This Court never has squarely addressed the applicability of the protections of the Taking Clause of the Fifth Amendment to commercial data of the kind involved in this case. In answering the question now, we are mindful of the basic axiom that ‘“[pjroperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’” Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 161 (1980), quoting Board of Regents v. Roth, 408 U. S. 564, 577 (1972). Monsanto asserts that the health, safety, and environmental data it has submitted to EPA are property under Missouri law, which recognizes trade secrets, as defined in § 757, Comment b, of the Restatement of Torts, as property. See Reddi-Wip, Inc. v. Lemay Valve Co., 354 S. W. 2d 913, 917 (Mo. App. 1962); Harrington v. National Outdoor Advertising Co., 355 Mo. 524, 532, 196 S. W. 2d 786, 791 (1946); Luckett v. Orange Julep Co., 271 Mo. 289, 302-304, 196 S. W. 740, 743 (1917). The Restatement defines a trade secret as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” §757, Comment b. And the parties have stipulated that much of the information, research, and test data that Monsanto has submitted under FIFRA to EPA “contains or relates to trade secrets as defined by the Restatement of Torts.” App. 36. Because of the intangible nature of a trade secret, the extent of the property right therein is defined by the extent to which the owner of the secret protects his interest from disclosure to others. See Harrington, supra; Reddi-Wip, supra; Restatement of Torts, supra; see also Kewanee Oil Co. v. Bicron Corp., 416" }, { "docid": "23277424", "title": "", "text": "452; Godefroy Mfg. Co. v. Lady Lennox Co., Mo.App., 134 S.W.2d 140, 141. The fact, however, that another has legitimately discovered the trade secret will not permit one to whom a confidential disclosure has been made to violate the confidence, where the matter has not been generally disclosed by any of the discoverers, so as to have become public knowledge and property. It appears from the record that plaintiffs have made application for a patent on the improvement involved, and that this application is still pending. An application to patent a discovery is not of itself a general disclosure of the discoverer’s secret, and hence is not a release of the obligation of a confidential disclosee. A. O. Smith Corp. v. Petroleum Iron Works Co., 6 Cir., 73 F.2d 531, 537. Rule 15 of the Rules of Practice of the United States Patent Office, 35 U.S.C.A. Appendix, provides that “Pending applications are preserved in secrecy”, and that “No information will be given, without authority, respecting the filing by any particular person of an application for a patent * * * or the subject matter of any particular application, unless it shall be necessary to the proper conduct of business before the office * * If a discovery is one which constitutes invention and for which a patent is issued, the right of further secrecy is, of course, lost, for a legal disclosure and public dedication have then been made, with a right of limited and temporary monopoly granted as the reward. See Grant v. Raymond, 31 U.S. 218, 242, 6 Pet. 218, 8 L.Ed. 376; Shaw v. Cooper, 32 U.S. 292, 320, 7 Pet. 292, 8 L.Ed. 689; Gayler v. Wilder, 51 U.S. 477, 10 How. 477, 497, 13 L.Ed. 504. The evidence here would have supported a finding of confidential disclosure and violation. The issue, how ever, .is one wholly for the trial court’s determination on the evidence on a retrial, as is also the question of the nature and extent of the relief to which plaintiffs may be entitled, if confidential disclosure and violation are found 'to exist." }, { "docid": "22365718", "title": "", "text": "trade secret by those to whom' the secret has been confided under the express or implied restriction of nondisclosure or nonuse. The law also protects the holder of a trade secret against disclosure or use .when the knowledge is gained, not by the owner’s volition, but by some “improper means,” Restatement of Torts § 757 (a),, which may include theft, wiretapping, or even aerial reconnaissance. A trade secret law, however, does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or by' so-called reverse engineering, that is by starting with the known product and working backward to divine the process' which .aided in its development or manufacture. Novelty, in the patent law sense, is not required for a trade secret, W. R. Grace & Co. v. Hargadine, 392 F. 2d, at 14. “Quite clearly discovery is something less than invention.” A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F. 2d 531, 538 (CA6 1934), modified to increase scope of injunction, 74 F. 2d 934 (1935). However, some novelty will be required if merely because that which does not possess novelty is usually known; secrecy, in the context of trade' secrets, thus implies at least minimal novelty. The subject matter of a patent is limited to a “process, machine, manufacture, or composition of matter,, or ... . improvement thereof,” 35 U. \"S. C. § 101, which fulfills the three conditions of novelty and utility as articulated and defined in 35 U. S. C. §§ 101 and 102, and nonobvi ousness, as set out in 35 U. S. C. § 103. If an invention xueets the rigorous statutory tests for the issuance of a patent, the patent is granted, for a period of 17 years, giving what has been described as the “right of exclusion,” R. Ellis, Patent Assignments and Licenses § 4, p. 7 (2d ed. 1943). This protection goes not only to copying the subject matter, which is forbidden under the Copyright Act, 17 U. S, C. § 1 et seq., but also to independent creation. Ill The first issue" }, { "docid": "22571627", "title": "", "text": "and are well stated in section 757 of the A.L.I. Restatement of Torts as follows: “One who discloses or uses another’s trade secret, without a privilege to do so, is liable-to the other if ***** “(c) he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the otilen * * Directly in point in support of the proposition thus stated are Peabody v. Norfolk, 98 Mass. 452, 96 Am.Dec. 664 (opinion by Gray, J.) ; Nulomoline v. Stromeyer, 3 Cir., 249 F. 597; Herold v. Herold China & Pottery Co., 6 Cir., 257 F. 911; A. O. Smith Corp. v. Petroleum Iron Works of Ohio, 6 Cir., 73 F.2d 531, 539; Ferroline Corp. v. General Aniline & Film Corp., 7 Cir., 207 F.2d 912, 921; Seismograph Service Corp. v. Offshore Raydist, D.C.E.D. La., 135 F.Supp. 342, 354; Lamont C. & Co. v. Bonnie Blend Chocolate Corp., 135 Misc. 537, 238 N.Y.S. 78. See also Smith v. Dravo Corp., 7 Cir., 203 F.2d 369, 375; Franke v. Wiltschek, 2 Cir., 209 F.2d 493, 495. Nulomoline v. Stromeyer, supra, was a case in which the appropriation of the trade secret resulted, as here, from the employment of one to whom it had been imparted in the course of a former employment. In Herold v. Herold China & Pottery Co., supra [257 F. 913], Judge Knappen, speaking for the Court of Appeals of the Sixth Circuit, stated the rule as follows: “The rule is well settled that secret formulas and processes, such as are claimed to be involved here, are property rights which will be protected by injunction, not only as against those who attempt to disclose or use them in violation of confidential relations or contracts express or implied, but as against those who are participating in such attempt with knowledge of such confidential relations or contract, though they might in time have reached the same result by" }, { "docid": "22365717", "title": "", "text": "at 499, 192 N. E. 2d, at 104; National Tube Co. v. Eastern Tube Co., 3 Ohio C. C. R. (n. s.) 459, 462 (1902), aff’d, 69 Ohio St. 560, 70 N. E. 1127 (1903). This necessary element of secrecy is not lost, however, if the holder of the trade secret reveals the trade secret to another “in confidence, and under an implied obligation not .to use or disclose it.” Cincinnati Bell Foundry Co. v. Dodds, 10 Ohio Dec. Reprint 154, 156, 19 Weekly L. Bull. 84 (Super. Ct. 1887). These others may include those of the holder’s “employees to whom it is necessary to confide it, in order to apply it to the uses for which it is intended.” National Tube Co. v. Eastern Tube Co., supra, at 462. Often the recipient of confidential knowledge of the subject of a trade secret is a licensee of its holder. See Lear, Inc. v. Adkins, 395 U. S. 653 (1969). The protection accorded the trade secret holder is against the .disclosure or unauthorized use of the trade secret by those to whom' the secret has been confided under the express or implied restriction of nondisclosure or nonuse. The law also protects the holder of a trade secret against disclosure or use .when the knowledge is gained, not by the owner’s volition, but by some “improper means,” Restatement of Torts § 757 (a),, which may include theft, wiretapping, or even aerial reconnaissance. A trade secret law, however, does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or by' so-called reverse engineering, that is by starting with the known product and working backward to divine the process' which .aided in its development or manufacture. Novelty, in the patent law sense, is not required for a trade secret, W. R. Grace & Co. v. Hargadine, 392 F. 2d, at 14. “Quite clearly discovery is something less than invention.” A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F. 2d 531, 538 (CA6 1934), modified to increase scope of injunction, 74 F. 2d 934 (1935)." }, { "docid": "22987421", "title": "", "text": "is and the precedent question as to what may be the subject matter of a trade secret. We assume that almost any knowledge or information used in the conduct of one’s business may be held by its possessor in secret. 'International Industries v. Warren Petroleum Corp., D.C.Del., 99 F.Supp. 907; Restatement, Torts, Sec. 757(b) (1939). Of course, as the term demands, the knowledge cannot be placed in the public domain and still be retained as a “secret”. Thus, plaintiffs would not be permitted to copy the design of a known device and claim that the copies are their secret. That which has become public property cannot be recalled to privacy. However, this does not mean that the product must reach the stature of invention. Shellmar Products Co. v. Allen-Qualley Co., 7 Cir., 36 F.2d 623; Booth v. Stutz Motor Car Co., 7 Cir., 56 F.2d 962; A. O. Smith Corp. v. Petroleum Iron Works Co., 6 Cir., 73 F.2d 531. All that is required is that the information or knowledge represent in some considerable degree the independent efforts of its claimant. Clearly plaintiffs’ plans and customer lists fall within this broad field of knowledge and may properly be the subject matter of a trade secret. Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. 464, 60 A. 4; Chas. H. Elliott Co. v. Skillkrafters, Inc., 271 Pa. 185, 114 A. 488. We do not understand that defendant seriously contends otherwise. Rather its position is that the structural designs of plaintiffs’ containers were disclosed by (1) public use of the containers and (2) publicity material freely circulated. Thus, defendant says, at the crucial time of communication, plaintiffs’ knowledge was no longer secret, it had been publicly disclosed. As to the customer lists, defendant denies their very existence. The second of these assertions can be disposed of readily. The evidence is undis puted that plaintiffs had in their possession, at the time of their negotiations with defendant, original letters of inquiry from numerous shipping companies and a consequential number of files of further correspondence between plaintiffs and the inquirers. Together" }, { "docid": "10671552", "title": "", "text": "Kam Ski Co., Inc., 158 F.Supp. 919 (D.Md.1958), defendants, some of whom were former employees of plaintiff, commenced to manufacture skis which were substantially similar to those manufactured by plaintiff but which had certain admitted improvements. Plaintiff sought an injunction against the use by defendants of any “trade secrets which the individual defendants learned while working for plaintiff . . . .” Defendant initially contended that all of the disputed processes and methods could have been learned by anyone interested in manufacturing skis simply by examining the plaintiff’s skis which were publicly marketed — that in fact these processes and methods were known and used by aircraft mechanics and engineers. In granting a judgment for plaintiff, the trial court said that defendant’s conception of a trade secret or protected confidential information was too restricted and technical; rather, as plaintiff contends in this case, knowledge of what constitutes the best way to manufacture, package, distribute and sell a product may in itself constitute a trade secret or confidential information. The court stated in granting plaintiff full relief (158 F.Supp. at 923): “This [argument] overlooks the fact that a knowledge of the particular process, method or material which is most appropriate to achieve the desired result may itself be a trade secret. So may a knowledge of the best combination of processes, methods, tools and materials. ‘The mere fact that the means by which a discovery is made are obvious, that experimentation which leads from known factors to an ascertainable but presently unknown result may be simple, we think cannot destroy the value of the discovery to one who makes it, or advantage the competitor who by unfair means, or as the beneficiary of a broken faith, obtains the desired knowledge without himself paying the price in labor, money, or machines expended by the discoverer . . . .’ A. O. Smith Corp. v. Petroleum Iron Works Co., 6 Cir., 73 F.2d 531, 538, 539. ‘A trade secret may consist of any formula or pattern, any machine or process of manufacturing, or any device or compilation of information used in one’s business," }, { "docid": "9734451", "title": "", "text": "in these circumstances to bar a party from denying the existence of trade secrets. But see Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis.2d 202, 267 N.W.2d 242, 249 (1978) (estoppel based on contractual acknowledgement of trade secret status not appropriate in restraint of trade case for public policy reasons). These cases are distinguishable. In two, the party estopped had actually developed the trade secrets sought to be protected. See Ultra-Life Laboratories, Inc. v. Eames, 240 Mo.App. 851, 221 S.W.2d 224 (1949) (defendant’s poultry culling method); Germo Mfg. Co. v. Combs, 209 Mo.App. 651, 240 S.W. 872 (1922) (defendant’s poultry tonic). Furthermore, in most of the cases upon which CA relies, see also In re Uniservices, Inc., 517 F.2d 492 (7th Cir.1975), the court focused primarily on the defendant’s conduct over several years in acknowledging the proprietary nature of the product or process. CA is not in a similar position here. Therefore, I deny CA’s motion that AFW be equitably estopped from contesting the trade secret status of the SPO programs based on language in the 1979 Agreement. 5. Reference to Injunctive Relief. CA’s final request in this motion in limine is that AFW be precluded from mentioning CA’s claim for injunctive relief since it is an equitable one for the court’s determination. AFW responds that the jury must determine what, if any, portion of AFW’s software contains CA’s proprietary information so that the court can fashion the scope of the injunction. Therefore, AFW posits, the jury must be told that CA desires injunctive relief. I disagree with AFW’s position. To assess damages, the jury will no doubt be required to decide whether either the PC-Fund or Fundware programs, or both, were copied from CA’s code. Then I will determine, if necessary, whether to enjoin AFW’s distribution of PC-Fund or Fundware based on the jury’s conclusions. The jury need not be advised of CA’s equitable claim. Therefore, I grant the motion in limine as to reference to CA’s claim for injunctive relief. D. Defendant AFW’s Motion in Limine. 1. Dayton Deposition Exhibit 231. AFW’s first contention in this motion" }, { "docid": "11314115", "title": "", "text": "with Snell. The weight of the credible evidence discloses that Colgate was far from being sufficiently avid to ascertain what those limitations really were, and to have Fine live up to them. In E. I. DuPont De Nemours Powder Co. v. Masland, 244 U.S. 100, at page 102, 37 S.Ct. 575, at page 576, 61 L.Ed. 1016, the Supreme Court said: “The word property as applied to trademarks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted. The property may be denied, but the confidence cannot be. Therefore the starting point for the present matter is not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them. These have given place to hostility, and the first thing to be made sure of is that the defendant shall not fraudulently abuse the trust reposed in him. It is the usual incident of confidential relations. If there is any disadvantage in the fact that he knew the plaintiffs’ secrets, he must take the burden with the good.” In O. A. Smith Corporation v. Petroleum Iron Works Co. of Ohio, 6 Cir., 73 F.2d 531, in an action for patent infringement and also for damages for appropriation of secret processes in connection with welding that was useful in fabrication of stills employed in refining crude oils, the Court said, 73 F.2d 531, at pages 538-539: “The mere fact that the means by which a discovery is made are obvious, that experimentation which leads from known factors to an ascertainable but presently unknown result may be simple, we think cannot destroy the value of the discovery to one who makes it, or advantage the competitor who by unfair means, or as the beneficiary of a broken faith, obtains the desired knowledge without himself paying the price in labor, money, or machines expended by" }, { "docid": "22701174", "title": "", "text": "Co., 354 S. W. 2d 913, 917 (Mo. App. 1962); Harrington v. National Outdoor Advertising Co., 355 Mo. 524, 532, 196 S. W. 2d 786, 791 (1946); Luckett v. Orange Julep Co., 271 Mo. 289, 302-304, 196 S. W. 740, 743 (1917). The Restatement defines a trade secret as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” §757, Comment b. And the parties have stipulated that much of the information, research, and test data that Monsanto has submitted under FIFRA to EPA “contains or relates to trade secrets as defined by the Restatement of Torts.” App. 36. Because of the intangible nature of a trade secret, the extent of the property right therein is defined by the extent to which the owner of the secret protects his interest from disclosure to others. See Harrington, supra; Reddi-Wip, supra; Restatement of Torts, supra; see also Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 474-476 (1974). Information that is public knowledge or that is generally known in an industry cannot be a trade secret. Restatement of Torts, supra. If an individual discloses his trade secret to others who are under no obligation to protect the confidentiality of the information, or otherwise publicly discloses the secret, his property right is extinguished. See Harrington, supra; 1 R. Milgrim, Trade Secrets § 1.01[2] (1983). Trade secrets have many of the characteristics of more tangible forms of property. A trade secret is assignable. See, e. g., Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 401-402 (1911); Painton & Co. v. Bourns, Inc., 442 F. 2d 216, 225 (CA2 1971). A trade secret can form the res of a trust, Restatement (Second) of Trusts §82, Comment e (1959); 1 A. Scott, Law of Trusts §82.5, p. 703 (3d ed. 1967), and it passes to a trustee in bankruptcy. See In re Uniservices, Inc., 517 F. 2d 492, 496-497 (CA7 1975). Even the manner in" }, { "docid": "3427497", "title": "", "text": "ever able to malee anything out of these gadgets and inventions and ideas of Sloan’s and that Sloan is going to be protected and have some participation in it and some agreement will be entered into.’ And that was the understanding between Dick and Sloan and I through this period of time, after this exclusive distributorship of June 14, 1948.” (Emphasis supplied.) (R. 59, 60.) . See (PX 15) and (R. 66, Poe). . The working agreement tendered by the defendant to the original manufacturer stated, among other things, that “Patent royalties will be paid by Mud Products, Inc., directly to Mr. J. I. Sloan.” (PX 23.) . 4 Cir., 1944, 141 F.2d 587, 597. Cf. Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 1935, 80 F.2d 912 at page 923. . 10 Cir., 1934, 71 F.2d 31, 36. . “To entitle one to a patent, there must be invention. The applicant must have exercised some degree of ingenuity, displayed some flash of genius, inspiration, or imagination not within the reach of mere artisanship. * * * A process may, however, be maintained in secrecy and be entitled to equitable protection even though invention is not present. The cases which deal with the elements necessarily present in a proprietary process are careful to define such processes as resulting from invention, or discovery. [Citing cases.] Quite clearly discovery is something less than invention. Invention requires genius, imagination, inspiration, or whatever is the faculty that gives birth to the inventive concept. Discovery may be the result of industry, application, or be perhaps merely fortuitous. The discoverer, however, is entitled to the same protection as the inventor.” (Emphasis supplied.) A. O. Smith Corporation v. Petroleum Iron Works Co., 6 Cir., 1934, 73 F.2d 531, 538. Petition for rehearing denied in first case, and former opinion corrected in the second ease, 6 Cir., 74 F.2d 934. Cf. American Dirigold Corp. v. Dirigold Metals Corp., 6 Cir., 1949, 125 F.2d 446, at page 452. . “The mere fact that the means by which a discovery is made are obvious, that experimentation which leads from" }, { "docid": "15570315", "title": "", "text": "page 150 et seq. Under the common law, the creator has an exclusive property right in designs for works of ornament or utility until publication is permitted. Fashion Originators Guild of America v. Federal Trade Com mission, 2 Cir., 114 F.2d 80, affirmed 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; American Dirigold Corp. v. Dirigold Metals Corp., 6 Cir., 125 F.2d 446. In the absence of a statutory copyright or patent, no person has the monopoly in any idea, device or process, which has not been effectively kept a secret, and competitors may freely copy and imitate them without liability to the originator. The imitation of the designs of another, where they have not been effectively kept a secret, is a socially useful type of competition. Millinery Creators’ Guild, Inc. v. Federal Trade Commission, 2 Cir., 109 F.2d 175; Restatement, Law of Torts, § 757, Comment (a). The question, therefore, resolves itself into whether the plaintiff abandoned the property right which it had in the “loop” design during any of the period of time referred to in the complaint. I have no difficulty in resolving the question subsequent to January 10, 1949, since the plaintiff placed its glassware, cut with a “loop” design, on public exhibition in Pittsburgh, Pennsylvania, on said date. It was offered, for sale and constituted a general publication whereby the plaintiff abandoned and surrendered any common law property right it may have had in said design. On said date any competitor was free to imitate and copy the design, and engage in active competition with the plaintiff. J. C. Penny Co. v. H. D. Lee Mercantile Co., 8 Cir., 120 F.2d 949; Fashion Originators Guild of America v. Federal Trade Commission, supra. However, the actions of the defendant present a more involved question as to the publication, if any, and the abandonment of the common law property rights •which the plaintiff had in said design prior to January. 10, 1949. Since the relief asked by the plaintiff is of a general equitable nature and does not arise under the patent or copyright laws" } ]

[ { "docid": "14775335", "title": "", "text": "(most of them somewhat mellow) cited by Liberty Mutual. IY. Liberty Mutual further excepts to the District Court’s award of attorney fees to the plaintiffs. It notes that the Florida statute in point awards such fees only to “an insured or the named beneficiary,” in suits against an insurer. The Davises here stood in the shoes of the insured; they bought his claim. The purpose of the statute is to penalize an insurer’s intransigence when it forces a claim to be litigated. Bad faith, if found, is the equivalent of such intransigence, and the penalty should be enforceable, by assignees no less than the insured. The entire cause of action was assigned, including Bess’ right to attorneys’ fees. V. The final question we consider on appeal is whether interest should run from the date of garnishment payment or only from judgment. Liberty Mutual cites Florida authority to the effect that interest in tort actions accrues only from the time of judgment, which, in this case, would be the later date. Again, however, the tort-contract dichotomy cannot easily or rationally be extended to actions for refusal to settle. We note that in the Shaw case, supra, the court awarded interest from the date of the original judgment against the insured. On rehearing, the Florida Supreme Court upheld that element of the award. 134 Fla. 832, 184 So. 860. The judgment is affirmed. . Suit is now pending to determine whether the collisions constituted a single accident under the policy. We express no opinion on the matter. . Mr. and Mrs. Rawls instituted suit against Bess on November 9, 1963, and obtained a verdict for $24,840 on May 6, 1965. . Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L.Rev. 27 (1956). . Auto Mut. Indemnity Co. v. Shaw, 1938, 134 Fla. 815, 184 So. 852, 859; American Fire & Cas. Co. v. Davis, Fla.D.Ct.App., 1962, 146 So.2d 615, 617; American Fidelity & Casualty Co. v. Greyhound Corp., 5 Cir. 1956, 232 F.2d 89, 93; Dotschay v. National Mutual Ins. Co., 5 Cir. 1957, 246 F.2d 221, 222; Tully v. Travelers Ins. Co.," } ]

[ { "docid": "5890779", "title": "", "text": "Unlike Venn in this case, American, the successful bad faith claimant, actually paid the excess judgment before suing for bad faith. As a result, American had incurred actual, out-of-pocket losses before it received a judgment on its bad faith claim. Thus, an award of prejudgment interest was necessary to compensate American fully for its loss. General Accident does not suggest that the successful bad faith claimant is always entitled to prejudgment interest, regardless of whether it has suffered actual pecuniary harm. The second case cited by Venn, Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938), also provides no support for an award of prejudgment interest here. The bad faith claimant in that case prevailed at trial and was awarded damages and interest. The Supreme Court of Florida, however, held that the evidence was insufficient to support a finding of bad faith and reversed. The opinion does not mention the issue of prejudgment interest. Venn also argues that bankruptcy law allows a bankruptcy trustee to recover prejudgment interest on a state law claim that is an asset of the estate. That is an accurate statement of a general principle of law. It does not, however, justify an award of prejudgment interest when the applicable state law requires proof of an actual, out-of-pocket loss, as does the law of Florida, and the bankruptcy estate has suffered no such loss, as is the ease here. I am not denying prejudgment interest because federal bankruptcy law prevents its award; it does not. Instead, I am denying prejudgment interest because Florida law does not authorize its award under the factual circumstances of this case. Finally, I note that no injustice is done Mrs. Camp by denying prejudgment interest on a bad faith award. The only possible harm caused by St. Paul’s failure to settle is to the bankruptcy estate. St. Paul’s failure to settle hardly harmed Mrs. Camp; she repeatedly offered to settle her claim for $250,000, yet she ended up with a judgment in excess of $3,300,000. She has been paid in full by St. Paul the $250,000 (plus" }, { "docid": "21320825", "title": "", "text": "as defined under the three subsections above.” . “1. Notice of Accident, Occurrence or Loss. In the event of an accident, occurrence or loss, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured, and also reasonably obtainable information respecting the time, place, circumstances of the accident or occurrence, names and addresses of injured persons and available witnesses. * * *» . The record indicates strongly that the Insurer learned of this asserted incapacity of Mrs. Burton late in the Federal Court discovery process. . This of course assumes that the policy was in full force and effect when the accident occurred. On the argument the Insurer stressed that the trial court’s disposition made it unnecessary to pass on a separate independent defense that the coverage of the policy terminated prior to the accident. By our holding here, we do not foreclose to the Insurer the full opportunity to assert and establish that defense. We intimate nothing as to the merits thereof as this is a matter for the District Court initially. . This is not a suit, either direct or by way of garnishment, by the judgment creditors against the Insurer. . It is too early to even intimate the dollar limits — the full amount of the judgments? Or up to the face amount ($50.-000/$100,000) of the policy? This may be affected by the Florida standard as to the Insurer’s liability for amounts in excess of the policy limits for failure to settle, or here, defend. In Florida the Insurer is liable for the excess over policy limits for failure to exercise good faith in the defense, handling and settlement of a claim against the Assured, Auto Mut. Indemnity Co. v. Shaw, 1938, 134 Fla. 815, 184 So. 852, 859; American Fire & Cas. Co. v. Davis, Fla.D.Ct. App., 1962, 146 So.2d 615, 617; American Fidelity & Casualty Co. v. Greyhound Corp., 5 Cir., 1956, 232 F.2d 89, 93; Dotschay v. National Mutual" }, { "docid": "13874499", "title": "", "text": "the policy limits, the parties could not agree and Camp’s case proceeded to trial. Mrs. Camp won a verdict of more than three million dollars on June 25, 1987. This judgment was affirmed on appeal. Kimbell v. Camp, 532 So.2d 1061 (Fla.Dist. Ct.App.1988) (table). Subsequent to the verdict, the bankruptcy court in December of 1988 entered an order allowing the excess of the judgment as a general, non-priority unsecured claim against Dr. Kimbell’s bankruptcy estate. Once again, the bankruptcy court stated that Camp’s judgment could not be enforced against Dr. Kimbell personally. In the Florida state trial court, Dr. Kimbell moved for an order canceling and discharging the three million dollar judgment pursuant to Fla.Stat. ch. 55.145 (1991). On January 11, 1989, the lower state court discharged the judgment against Dr. Kim-bell in accordance with this provision of Florida law. B. Procedural Background of the Bad Faith Lawsuit On February 3, 1989, the bad faith lawsuit filed by Camp and Venn at the end of 1988 — the lawsuit that is the subject of this appeal — was removed to the United States District Court for the Northern District of Florida. After discovery, the parties briefed and argued cross-motions for summary judgment. St. Paul’s motion for summary judgment relied heavily upon Fidelity and Casualty Co. v. Cope, 462 So.2d 459 (Fla.1985), and Clement v. Prudential Property & Casualty Ins. Co., 790 F.2d 1545 (11th Cir.1986) (interpreting Florida law). According to St. Paul, Cope and Clement make it clear that the essence of an insurance bad faith claim in Florida is the named insured’s liability for an excess judgment following the insurance company’s bad faith failure to settle. The reason that some extant exposure to liability in the insured is the sine qua non of a Florida bad faith claim, St. Paul contended, is that the insurer’s duty runs to the insured, not to any injured third party. In Cope and Clement, the named insured was not responsible for an excess verdict, because either the injured third party executed a release of his claims against the named insured (Cope) or agreed" }, { "docid": "12508129", "title": "", "text": "judgment creditor of the insured the same rights against the insurer as the insured would have if he had satisfied the judgment, the judgment creditor is entitled to collect a judgment in excess of the policy coverage from the insurer which in bad faith or negligently has refused to settle. Kleinschmit v. Farmers Mutual Hail Insurance Ass’n, 101 F.2d 987 (8 Cir. 1939); Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). And the following cases indicate that if the insured validly assigns to the injured party his tort action against the insurer for failure to settle, the injured party can recover from the insurer to the same extent that the insured could have recovered. Smith v. Transit Casualty Co., 281 F.Supp. 661 (E.D.Tex.1968) (applying Texas law) ; Atlantic City v. American Casualty Insurance Company, 254 F.Supp. 396 (D.N.J.1966) (applying N.J. law); Comunale v. Traders & General Insurance Co., 50 Cal.2d 654, 328 P.2d 198 (1958). The court in Atlantic City also stated that the injured party, as a third-party beneficiary of the insured’s liability policy requiring the insurer to take complete control of the investigation, preparation and defense of claims against the insured, was entitled to bring an action for alleged breach of the policy by the insurer which resulted in an excess judgment. In this jurisdiction, as this Court pointed out in its earlier opinion, 287 F. Supp. at 110, this Court has squarely held in Turgeon v. Shelby Mutual Plate Glass & Casualty Co., 112 F.Supp. 355 (D. Conn.1953) (Smith, D. J.), that a judgment creditor has a right of direct action against the debtor’s insurer, to recover damages in excess of the policy limits on the ground of the insurer’s negligent failure to settle. Finally, the Court of Appeals for this Circuit is not unfamiliar with litigation arising out of claims against insureds based upon negligence or bad faith in failing to settle within the policy limits. Brockstein v. Nationwide Mutual Insurance Co., 417 F.2d 703 (2 Cir. 1969), slip opinion 155 (October 20, 1969); Young v. American Casualty Co., 416 F.2d" }, { "docid": "5890773", "title": "", "text": "not receive interest. Thus, the rule as announced by Argonaut and Alvarado is that a claimant is entitled to prejudgment interest if he or she has suffered an actual, out-of-pocket loss at some date prior to the entry of judgment. The actual loss will almost always be damage to property or the wrongful withholding of money. See Insurance Co. of North Am. v. Lexow, 937 F.2d 569, 571-72 (11th Cir.1991) (applying Florida law; owner of warehouse that was destroyed by fire was awarded prejudgment interest on insurance proceeds withheld by insurer); Air Prods. & Chems., Inc. v. Louisiana Land & Exploration Co., 867 F.2d 1376, 1378-79 (11th Cir.1989) (applying Florida law; seller of ethane gas entitled to prejudgment interest on money found to be due it under terms of contract); Cigna Prop. & Cas. Co. v. Ruden, 621 So.2d 714 (Fla. 3d DCA 1993) (marine insurance policy obligated insurer to reimburse insured for costs and salvage expenses incurred, but no award of prejudgment interest for the cost of items not yet actually paid by insured); Ferrell v. Ashmore, 507 So.2d 691 (Fla. 1st DCA 1987) (home builder who prevailed on mechanics lien claim entitled to prejudgment interest on damages for labor and materials). Applying the law set out in Argonaut and Alvarado to the facts of this case, I must conclude that Venn is not entitled to prejudgment interest on the excess judgment. Like the plaintiff in Alvarado who had incurred medical expenses but made no payment, Dr. Kimbell’s bankruptcy estate has incurred a claim against it in the amount of the excess judgment, but has paid nothing on that claim. Because it has paid nothing on Camp’s claim, the bankruptcy estate has suffered no actual, pecuniary loss as a result of that claim. In fact, because Dr. Kimbell’s bankruptcy estate is essentially a “no assets” estate, nothing (or virtually nothing) will be paid on Camp’s claim unless Venn prevails on the bad faith claim. Moreover, like the plaintiff in Alvarado whose outstanding medical bills were not accruing interest, Camp’s claim against the bankruptcy estate is not accruing interest. As" }, { "docid": "23235334", "title": "", "text": "the conclusion, however, it stated: “In settlement negotiations, the company is held to that degree of care and diligence which a man of ordinary care and prudence should exercise in the management of his own business.” The latter instruction was the source of strong objection by American’s counsel earlier in the day, when the instructions were argued. The court at that time conceded, “Mere negligence is not sufficient,” but defended the charge on the ground that it was a close paraphrase from the opinion in Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852, the only Florida case on point. American’s counsel asserted that the instruction “is not the law of Florida” and “is confusing to the jury.” The court answered, “It is confusing to me, not only the jury.” We agree with the appellant in its assertions that the instruction was both confusing and incorrect. In the Shaw case, the declaration alleged that the insurance company was guilty of bad faith and negligence in not paying or settling Shaw’s claim against a policyholder, with the result that Shaw’s judgment against the policyholder went unsatisfied for the amount above the limits of the policy. The case was submitted to the jury on instructions not set forth in the opinion, and judgment was entered on the jury verdict returned in favor of Shaw. The Supreme Court of Florida reversed. The court stated that Shaw had a right to maintain an action against the company, as a third party beneficiary under the policy; however, it held the evidence insufficient to sustain the verdict “in light of the rule of law controlling the case.” 184 So. 852, 859. After citing and quoting cases from other jurisdictions, it summed up this rule as follows: “It appears that the insurance company in the settlement of claims and in conducting a defense before the court on suits filed should be held to that degree of care and diligence which a man of ordinary care and prudence should exercise in the management of his own business. [Citing cases.] The prevailing rule seems to be," }, { "docid": "18741593", "title": "", "text": "FOR ANY AMOUNT OF THE JUDGMENT, PRE CLUDES AN INJURED PARTY’S OR BANKRUPTCY TRUSTEE’S SUBSEQUENT BAD FAITH CAUSE OF ACTION AGAINST AN INSURANCE COMPANY. (2) WHETHER, AS A MATTER OF LAW, THE LANGUAGE OF A BANKRUPTCY CLAUSE IN A PARTICULAR INSURANCE POLICY, SUCH AS THE LANGUAGE AT ISSUE IN THIS CASE, CAN AUTHORIZE AN INJURED PARTY’S OR BANKRUPTCY TRUSTEE’S BAD FAITH ACTION AGAINST AN INSURANCE COMPANY, NOTWITHSTANDING THE FACT THAT THE NAMED INSURED WAS NEVER PERSONALLY LIABLE FOR ANY AMOUNT OF AN EXCESS JUDGMENT DUE TO THE NAMED INSURED’S BANKRUPTCY. Id. at 344. The Florida Supreme Court answered the questions by holding that a bankruptcy trustee may bring an action against the bankrupt’s insurance company for the bad faith failure to settle a claim. Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12 (Fla. 1993) (“Camp II ”). The court reasoned that from the time Dr. Kimbell declared bankruptcy, St. Paul owed a duty of good faith to the bankruptcy estate, and not to Dr. Kim-bell. “The bankruptcy estate stood in the shoes of the debtor and, in effect, the estate became the insured.” Id. at 15. The court rejected its own previous analysis in Cope, and held that while there was no damage to Dr. Kimbell, there was damage to his bankruptcy estate. The court held: “The excess judgment against Dr. Kimbell harmed his bankruptcy estate by increasing the debt of the estate to the detriment of its creditors. The estate was damaged by the addition of Mrs. Camp as an additional unsecured creditor, a result that could have been avoided if St. Paul had settled her claim. As the trustee of the bankruptcy estate, Mr. Venn acted properly in filing a bad faith claim to recoup the excess judgment for which the estate remains liable.” Therefore, Venn, as trustee of the bankruptcy estate, could bring a bad faith cause of action for harm done to the estate by St. Paul’s alleged bad faith. For reasons discussed later, this logic is flawed. The Eleventh Circuit then reversed Judge Vinson’s summary judgment order and remanded the case" }, { "docid": "14775314", "title": "", "text": "an assignment of any claim that Bess might have against Liberty Mutual for the damage to Bess resulting from the company’s refusal to settle the Davises’ claim. In consideration of this assignment, the Davises released their claim to the unpaid portion of Bess’ judgment debt. The assignees then sued upon the refusal-to-settle claim. Libery Mutual removed the case to the District Court for the Middle District of Florida, under Title 28 U.S.C. § 1441. At the close of evidence, the district court denied the insurer’s motion for a directed verdict on the issue of bad faith in the refusal to settle. The jury returned a vedict in favor of the Davises for $27,593 with interest at the rate of 6 per cent from May 5, 1965. The court added $10,000 for attorneys’ fees. I. The central issue in the case is whether the insurer was guilty of bad faith in refusing to settle with the Davises. The insurer concedes that there may be some question whether its concern about being a volunteer was legally justifiable, but insists that it was a good faith concern. The insurer contends that the trial court erred in not directing a verdict in its favor; erred in its charge to the jury on bad faith; erred in allowing evidence of negotiations before suit was filed; and erred in refusing to permit the insurer’s experts to testify as to Liberty Mutual’s good faith. A. The first Florida decision involving the liability of an insurer for failure to settle within policy limits is Automobile Mutual Indemnity Co. v. Shaw, 1938, 134 Fla. 815, 184 So. 852. The Court held the insurer to “that degree of care and diligence which a man of ordinary care and prudence should exercise in the management of his own business”. Yet at the same time the Court approved the “prevailing rule * * * that the insurer must act in good faith toward the assured in its effort to negotiate a settlement”-. This ambivalent langauge was construed in American Fidelity & Casualty Co. v. Greyhound Corporation, 5 Cir. 1956, 232 F.2d 89." }, { "docid": "5890764", "title": "", "text": "and discharging the judgment against Dr. Kimbell, in accordance with Section 55.145, Florida Statutes. This order had the same effect as a satisfaction of judgment by Dr. Kimbell personally. Venn, as trustee of the bankruptcy estate of Dr. Kimbell, then brought this bad faith action against St. Paul. The Supreme Court of Florida, in response to questions of law certified to it by the Court of Appeals for the Eleventh Circuit, held that Venn could bring a bad faith claim against St. Paul. Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12, 15 (Fla.1993). The Florida court held that St. Paul’s duty to act in good faith toward its insured, Dr. Kimbell, also extended to Dr. Kimbell’s bankruptcy estate. Venn, as trustee of the bankruptcy estate, could bring a claim to redress harm done to the estate by St. Paul’s alleged bad faith. The excess judgment against Dr. Kim-bell harmed his bankruptcy estate by increasing the debt of the estate to the detriment of his creditors. The estate was damaged by the addition of Mrs. Camp as an additional unsecured creditor, a result that could have been avoided if St. Paul had settled her claim. As the trustee of the bankruptcy estate, Mr. Venn acted properly in filing a bad faith action to recoup the excess judgment for which the estate remains liable. Id. At the pretrial conference in this matter, I heard argument on the issue of what should be the proper measure of compensatory damages. In my judgment, the Supreme Court of Florida answered that question by implication in its opinion. By holding that the bankruptcy estate was harmed by the excess judgment and that Venn “acted properly in filing a bad faith action to recoup the excess judgment,” the Florida court fixed the excess judgment as the measure of compensatory damages. The question then becomes whether Venn would be entitled to prejudgment interest on the amount of the excess judgment if St. Paul is found to have acted in bad faith. The malpractice judgment against Dr. Kimbell was entered in June 1987, so that" }, { "docid": "23235335", "title": "", "text": "a policyholder, with the result that Shaw’s judgment against the policyholder went unsatisfied for the amount above the limits of the policy. The case was submitted to the jury on instructions not set forth in the opinion, and judgment was entered on the jury verdict returned in favor of Shaw. The Supreme Court of Florida reversed. The court stated that Shaw had a right to maintain an action against the company, as a third party beneficiary under the policy; however, it held the evidence insufficient to sustain the verdict “in light of the rule of law controlling the case.” 184 So. 852, 859. After citing and quoting cases from other jurisdictions, it summed up this rule as follows: “It appears that the insurance company in the settlement of claims and in conducting a defense before the court on suits filed should be held to that degree of care and diligence which a man of ordinary care and prudence should exercise in the management of his own business. [Citing cases.] The prevailing rule seems to be, however, that the insurer must act in good faith toward the assured in its effort to negotiate a settlement. This the defendant concedes * * * considering that the action below cannot be sustained either upon the theory of negligence or of implied contract, but that it may be supported upon the allegations of bad faith exercised in the settlement negotiations by the defendant to the plaintiff.” 184 So. 852, 859. It thus appears quite clear that the Florida Supreme Court, in the Shaw case, aligned itself with the majority of jurisdictions adhering to the good faith test of the duty placed upon an insurer, rather than the negligence test. See Note, 40 A.L.R.2d 162, especially pp. 178, 223. Greyhound defends the charge on the ground that the Supreme Court of Florida, in the Shaw case, “did not adopt the bad faith rule over the negligence theory.” As noted above, this contention is incorrect. Greyhound also asserts that the jury “had to be charged” that the insurer in the settlement of claims is held to" }, { "docid": "14775315", "title": "", "text": "but insists that it was a good faith concern. The insurer contends that the trial court erred in not directing a verdict in its favor; erred in its charge to the jury on bad faith; erred in allowing evidence of negotiations before suit was filed; and erred in refusing to permit the insurer’s experts to testify as to Liberty Mutual’s good faith. A. The first Florida decision involving the liability of an insurer for failure to settle within policy limits is Automobile Mutual Indemnity Co. v. Shaw, 1938, 134 Fla. 815, 184 So. 852. The Court held the insurer to “that degree of care and diligence which a man of ordinary care and prudence should exercise in the management of his own business”. Yet at the same time the Court approved the “prevailing rule * * * that the insurer must act in good faith toward the assured in its effort to negotiate a settlement”-. This ambivalent langauge was construed in American Fidelity & Casualty Co. v. Greyhound Corporation, 5 Cir. 1956, 232 F.2d 89. This Court, in reversing and remanding, stated: It thus appears quite clear that the Florida Supreme Court, in the Shaw case, aligned itself with the majority of jurisdictions adhering to the good faith test of the duty placed upon an insurer, rather than the negligence test. (Citation omitted) * * * [Even though] evidence of negligence is admissible on the question of good faith, the test is * * * [still not] in effect converted from good faith to due care. On the appeal after the remand, 258 F.2d 709, 716, the Court explained the “due care” language in Shaw: [F]rom the recitation of it by the Florida Court we reach the conclusion that it has adopted the rule that in the application of the good faith test consideration may be given to the negligence of the insurer in determining whether it has conducted settlement negotiations in good faith. Later decisions of this Court and of the Florida courts make it clear that, “In Florida the Insurer is liable for the excess over policy limits" }, { "docid": "5890778", "title": "", "text": "“Florida law mandates the recovery of prejudgment interest in bad-faith excess liability insurance actions like this one.” However, the two cases cited by Venn do not support that proposition. General Accident Fire & Life Assurance Corp. v. American Casualty Co., 390 So .2d 761 (Fla. 3d DCA 1980), was a bad faith action brought by an excess liability insurer, American, against a primary liability insurer, General. A child drowned in a swimming pool owned by Brown. The child’s parents sued Brown and his two insurers: General, which was Brown’s primary insurer on a homeowner’s policy, and American, the excess insurer. General made no effort to settle the ease, despite American’s demands that it do so. After the jury returned a verdict awarding the plaintiffs $700,000, the ease was settled for $690,000. General, the primary carrier, paid its policy limit of $300,-000, and American paid the remaining $390,-000. Id. at 763. American then sued General for bad faith failure to settle, and was awarded damages and prejudgment interest. The prejudgment interest award was affirmed on appeal. Unlike Venn in this case, American, the successful bad faith claimant, actually paid the excess judgment before suing for bad faith. As a result, American had incurred actual, out-of-pocket losses before it received a judgment on its bad faith claim. Thus, an award of prejudgment interest was necessary to compensate American fully for its loss. General Accident does not suggest that the successful bad faith claimant is always entitled to prejudgment interest, regardless of whether it has suffered actual pecuniary harm. The second case cited by Venn, Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938), also provides no support for an award of prejudgment interest here. The bad faith claimant in that case prevailed at trial and was awarded damages and interest. The Supreme Court of Florida, however, held that the evidence was insufficient to support a finding of bad faith and reversed. The opinion does not mention the issue of prejudgment interest. Venn also argues that bankruptcy law allows a bankruptcy trustee to recover prejudgment interest on a state" }, { "docid": "5890763", "title": "", "text": "included Camp’s malpractice claim. The bankruptcy court later modified the automatic stay to allow Camp to proceed with her malpractice claim, so that Camp’s claim could be liquidated. The bankruptcy court, consistent with the earlier discharge order, ruled that any judgment obtained by Camp would not be enforceable against Dr. Kimbell personally. Rather, such a judgment would be enforceable only against the bankruptcy estate. St. Paul rejected four offers to settle the malpractice case for $250,000, which was the limit of Dr. Kimbell’s liability insurance. The case went to trial in June 1987, and resulted in a verdict for Camp of more than $3,300,000. St. Paul then paid Camp the policy limit of $250,000. The unpaid, excess portion of the judgment (hereinafter “the excess judgment”), in the fixed amount of $2,784,942.66, was allowed by the bankruptcy court as a general, non-priority unsecured claim of Camp against the bankruptcy estate. In doing so, the bankruptcy court again stated that Camp’s claim could not be enforced against Dr. Kimbell personally. The Florida court entered an order canceling and discharging the judgment against Dr. Kimbell, in accordance with Section 55.145, Florida Statutes. This order had the same effect as a satisfaction of judgment by Dr. Kimbell personally. Venn, as trustee of the bankruptcy estate of Dr. Kimbell, then brought this bad faith action against St. Paul. The Supreme Court of Florida, in response to questions of law certified to it by the Court of Appeals for the Eleventh Circuit, held that Venn could bring a bad faith claim against St. Paul. Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12, 15 (Fla.1993). The Florida court held that St. Paul’s duty to act in good faith toward its insured, Dr. Kimbell, also extended to Dr. Kimbell’s bankruptcy estate. Venn, as trustee of the bankruptcy estate, could bring a claim to redress harm done to the estate by St. Paul’s alleged bad faith. The excess judgment against Dr. Kim-bell harmed his bankruptcy estate by increasing the debt of the estate to the detriment of his creditors. The estate was damaged by the" }, { "docid": "5890765", "title": "", "text": "addition of Mrs. Camp as an additional unsecured creditor, a result that could have been avoided if St. Paul had settled her claim. As the trustee of the bankruptcy estate, Mr. Venn acted properly in filing a bad faith action to recoup the excess judgment for which the estate remains liable. Id. At the pretrial conference in this matter, I heard argument on the issue of what should be the proper measure of compensatory damages. In my judgment, the Supreme Court of Florida answered that question by implication in its opinion. By holding that the bankruptcy estate was harmed by the excess judgment and that Venn “acted properly in filing a bad faith action to recoup the excess judgment,” the Florida court fixed the excess judgment as the measure of compensatory damages. The question then becomes whether Venn would be entitled to prejudgment interest on the amount of the excess judgment if St. Paul is found to have acted in bad faith. The malpractice judgment against Dr. Kimbell was entered in June 1987, so that would be the date that the bankruptcy estate suffered the harm caused by St. Paul’s alleged bad faith. Simple interest on the excess judgment of $2,784,942, computed at Florida’s statutory rate of 12 percent per annum, would amount to approximately $2.4 million as of June 1994. If compounded annually, interest on the excess judgment would amount to more than $3.3 million. II. ANALYSIS In a diversity case, a federal district court must apply state law to determine if a successful claimant should recover prejudgment interest. Royster Co. v. Union Carbide Corp., 737 F.2d 941, 948 (11th Cir.1984). Plaintiff’s bad faith claim arises under Flori da law, so Florida law controls the prejudgment interest question. Before 1985, the law of prejudgment interest in Florida was rather confusing. See Royster Co., supra (“What the Florida law is on prejudgment interest is far from clear.”). The controlling principle seemed to be that prejudgment interest was awarded on claims that were “liquidated” on the date a loss was suffered, but not on claims that were “unliq-uidated.” Courts struggled with" }, { "docid": "12883787", "title": "", "text": "Insurance Co. v. Davis, 5 Cir., 1969, 412 F.2d 475, 480; Burton v. State Farm Mutual Automobile Insurance Co., 5 Cir., 1964, 335 F.2d 317, 324 n. 14; Auto Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938); American Fire & Casualty Company v. Davis, 146 So.2d 615 (Fla.Dist.Ct.App.1962). When an insured sues to recover such an excess on the ground that the insurer’s conduct in failing to effect a settlement within policy limits amounts to bad faith, it must be shown that the insurer had an opportunity to settle the claim against the insured within policy limits. That is, in refusal-to-settle cases, Florida law does not subject the insurer to liability for bad faith or conduct tantamount to bad faith in the absence of an offer by the person claiming against the insured to settle within the limits of the insured’s policy. American Fidelity Fire Insurance Co. v. Johnson, 177 So.2d 679, 683 (Fla.Dist.Ct.App.1965), cert. denied, 183 So.2d 835 (Fla.1966); accord, Seward v. State Farm Mutual Automobile Insurance Co., 5 Cir., 1968, 392 F.2d 723, 727-728. See also Comunale v. Traders 6 Gen. Ins. Co., 50 Cal.2d 654, 328 P.2d 198 (1958). In this case the District Court found that Allstate never had an opportunity to settle within the $10,000 limit of Bush’s policy. On the record before us, we have no basis for saying that this finding was wrong. Bush, therefore, was not entitled to recover from Allstate. Affirmed. . We have concluded on the merits that this case is oí the character that does not justify oral argument. Therefore, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this action ■ in writing. 5 Cir.R. 18; see Huth v. Southern Pacific Co., 5 Cir., 1969, 417 F.2d 526, 527-530; Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, 805-808. . Bush v. Allstate Insurance Company, S.D.Fla., 1969, 296 F.Supp. 368, 369. . Rule 1.430 of the Florida Rules corresponds to Fed.R.Civ.P. 38. It reads as follows: “(a) Right Preserved. The right of" }, { "docid": "5890782", "title": "", "text": "interest been accruing against the estate on Camp’s claim. III. CONCLUSION The law of Florida entitles a claimant to prejudgment interest if he has suffered an actual, out-of-pocket loss at some date prior to the entry of judgment. That is the law applicable to Venn’s bad faith claim against St. Paul. The bankruptcy estate has suffered no actual pecuniary loss so as to warrant the payment of interest to make the estate whole. The bankruptcy estate has not expended funds to satisfy Camp’s claim, nor has Camp’s claim been accruing interest against the bankruptcy estate. The Supreme Court of Florida has ruled that the bankruptcy estate has been harmed by the addition of the excess judgment as a claim against the estate. The measure of the harm done the estate should be the measure of St. Paul’s liability if it is found to have acted in bad faith. Interest should not be awarded when the estate has not been harmed beyond the actual amount of the excess judgment. Venn’s argument that the court must automatically award prejudgment interest is incorrect. Without proof of actual loss of property or funds, a claimant is not entitled to prejudgment interest under Florida law. Otherwise, prejudgment interest would be added to every compensatory damages award, and that is not the law of Florida. For these reasons, I conclude that Venn will not be entitled to prejudgment interest on the damages award (which I have determined to be the amount of the excess judgment) if he prevails on his bad faith claim. DONE AND ORDERED. . The facts are set forth in greater detail in my order of February 12, 1991 [Camp v. St. Paul Fire & Marine Ins. Co., 127 B.R. 879 (N.D.Fla.1991)], and in the Eleventh Circuit’s opinion of April 16, 1992 [Camp v. St. Paul Fire & Marine Ins. Co., 958 F.2d 340 (11th Cir.1992)]. .That section provides as follows: At any time after one (1) year has elapsed since a bankrupt or debtor was discharged from his debts, pursuant to the Act of Congress relating to Bankruptcy, the bankrupt or debtor," }, { "docid": "5890781", "title": "", "text": "interest) that she was willing to settle for. Nor is there injustice in making Camp wait to collect the proceeds of the excess judgment while the bankruptcy trustee litigates the bad faith claim. For, if Venn prevails on his bad faith claim, this would establish that St. Paul, if it had acted in good faith, would have settled the case for the $250,000 offered by Camp. In short, St. Paul’s “bad faith,” if proven, will result in a substantial windfall to Mrs. Camp: she would recover close to $3,000,000 on a claim that she was prepared to settle for one-twelfth that amount. It is for that rea son that Venn s suggestion that prejudgment interest should be awarded because it will ultimately flow to Mrs. Camp is a distraction from the proper focus. The real issue is what harm did St. Paul’s failure to settle cause the bankruptcy estate. The estate has paid out no funds on Camp’s claim, so interest is not necessary to compensate for the time value of money. Nor has post-petition interest been accruing against the estate on Camp’s claim. III. CONCLUSION The law of Florida entitles a claimant to prejudgment interest if he has suffered an actual, out-of-pocket loss at some date prior to the entry of judgment. That is the law applicable to Venn’s bad faith claim against St. Paul. The bankruptcy estate has suffered no actual pecuniary loss so as to warrant the payment of interest to make the estate whole. The bankruptcy estate has not expended funds to satisfy Camp’s claim, nor has Camp’s claim been accruing interest against the bankruptcy estate. The Supreme Court of Florida has ruled that the bankruptcy estate has been harmed by the addition of the excess judgment as a claim against the estate. The measure of the harm done the estate should be the measure of St. Paul’s liability if it is found to have acted in bad faith. Interest should not be awarded when the estate has not been harmed beyond the actual amount of the excess judgment. Venn’s argument that the court must automatically" }, { "docid": "5890777", "title": "", "text": "first place. The issue before the court is not whether the Bankruptcy Code would permit post-petition interest to be distributed to Camp and the other unsecured creditors if prejudgment interest is awarded to Venn. It would. Rather, the prejudgment interest law of Florida supplies the dispositive issue: Has the bankruptcy estate suffered an actual, pecuniary loss, such that interest must be awarded to fully compensate the estate for the harm caused by St. Paul’s failure to settle? The answer to that question is “No.” Prejudgment interest should not be tacked onto the bankruptcy estate’s bad faith claim against St. Paul, because the operation of the Bankruptcy Code has prevented interest from accruing on Camp’s elaim against the bankruptcy estate. That, coupled with the fact that the bankruptcy estate has not actually paid Camp’s claim, means that the bankruptcy estate has suffered no “actual, out-of-pocket loss” within the rule of Argonaut and Alvarado. I do not find persuasive the other points made by Venn in support of his claim for prejudgment interest. First, Venn argues that “Florida law mandates the recovery of prejudgment interest in bad-faith excess liability insurance actions like this one.” However, the two cases cited by Venn do not support that proposition. General Accident Fire & Life Assurance Corp. v. American Casualty Co., 390 So .2d 761 (Fla. 3d DCA 1980), was a bad faith action brought by an excess liability insurer, American, against a primary liability insurer, General. A child drowned in a swimming pool owned by Brown. The child’s parents sued Brown and his two insurers: General, which was Brown’s primary insurer on a homeowner’s policy, and American, the excess insurer. General made no effort to settle the ease, despite American’s demands that it do so. After the jury returned a verdict awarding the plaintiffs $700,000, the ease was settled for $690,000. General, the primary carrier, paid its policy limit of $300,-000, and American paid the remaining $390,-000. Id. at 763. American then sued General for bad faith failure to settle, and was awarded damages and prejudgment interest. The prejudgment interest award was affirmed on appeal." }, { "docid": "18741590", "title": "", "text": "Mrs. Camp’s claim. Hoffman and Bozeman advised St. Paul that, although there were no cases directly on point, St. Paul would probably not be found liable for bad faith because Dr. Kimbell could no longer be financially harmed by a judgment. In May, 1987, Mrs. Camp tendered her fourth offer to settle for the policy limits. St. Paul refused to settle, and the ease proceeded to trial. At trial, the jury returned a verdict for Mrs. Camp in excess of three million dollars. See Kimbell v. Camp, 532 So.2d 1061 (Fla. 1st DCA 1988) (affirming judgment on appeal). The bankruptcy court ordered that the excess judgment be classified as a general, non-priority unsecured claim against Dr. Kimbell’s bankruptcy estate. Pursuant to Section 55.154, Florida Statutes (1991), the state trial court granted Dr. Kimbell’s motion for an order cancelling and discharging the three-million-dollar judgment. This order had the same effect as a satisfaction of judgment by Dr. Kimbell personally. Mrs. Camp and Dr. Kimbell’s bankruptcy trustee, John E. Venn, next filed a bad faith action against St. Paul in state court, alleging that St. Paul failed to settle the medical malpractice claim in good faith. The bad faith claim was ultimately removed to the United States District Court for the Northern District of Florida, where Judge Roger Vinson granted summary judgment for St. Paul. Relying on Fidelity and Casualty Company v. Cope, 462 So.2d 459 (Fla.1985), Judge Vinson found that Dr. Kimbell’s bankruptcy discharge extinguished any bad faith claim against St. Paul. In Cope, the Florida Supreme Court held that an injured third-party who had secured an excess judgment could not maintain a bad faith claim against the insurer when the injured party has executed a release of his claim against the tortfeasor. Id. at 461. The court found that the third-party’s cause of action was “not separate and distinct from, but was derivative of’ the insured’s. Id. As a result, a satisfaction and/or release of the insured extinguishes the third party’s cause of action. See also Clement v. Prudential Property & Casualty Co., 790 F.2d 1545 (11th Cir.1986) (Eleventh Circuit" }, { "docid": "12883786", "title": "", "text": "party. See, e. g., Noonan v. Cunard Steamship Co., 2 Cir. 1967, 375 F.2d 69; 5 Moore, Federal Practice †[ 39.09, at 719 (2d ed. 1969). In this case the excuse put forth by Bush was the inadvertence of both his lawyers. That the pretrial conference was conducted under the mistaken assumption that Bush had complied with the federal rules respecting demand for a jury trial does not strengthen this excuse under the circumstances here. Accordingly, the District Court was not required to order a trial by jury. We next consider the merits of Bush’s claim against Allstate. Finding that this claim is fatally incomplete, we conclude, as did the District Court, that Allstate may not be held liable under Florida law for the excess over policy limits of Grant’s judgment against Bush. In Florida an insurer is liable for the excess over policy limits of a judgment against its insured if it fails to exercise good faith in the defense, handling, or settlement of the claim upon which that judgment is based. Liberty Mutual Insurance Co. v. Davis, 5 Cir., 1969, 412 F.2d 475, 480; Burton v. State Farm Mutual Automobile Insurance Co., 5 Cir., 1964, 335 F.2d 317, 324 n. 14; Auto Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938); American Fire & Casualty Company v. Davis, 146 So.2d 615 (Fla.Dist.Ct.App.1962). When an insured sues to recover such an excess on the ground that the insurer’s conduct in failing to effect a settlement within policy limits amounts to bad faith, it must be shown that the insurer had an opportunity to settle the claim against the insured within policy limits. That is, in refusal-to-settle cases, Florida law does not subject the insurer to liability for bad faith or conduct tantamount to bad faith in the absence of an offer by the person claiming against the insured to settle within the limits of the insured’s policy. American Fidelity Fire Insurance Co. v. Johnson, 177 So.2d 679, 683 (Fla.Dist.Ct.App.1965), cert. denied, 183 So.2d 835 (Fla.1966); accord, Seward v. State Farm Mutual Automobile Insurance Co., 5 Cir.," } ]

[ { "docid": "3695450", "title": "", "text": "the balance” until there has been some delay that is presumptively prejudicial. Barker, 407 U.S. at 530, 92 S.Ct. 2182. Generally, when, as here, more than one year has passed before commencement of trial, the delay is deemed presumptively prejudicial under this threshold inquiry and “this court undertakes a full Barker analysis, looking to the first three factors to decide whether prejudice will be presumed.” Parker, 505 F.3d at 328 (internal citation omitted). However, “delays of less than five years are not enough, by duration alone, to presume prejudice.” Id. at 328-29. This factor therefore does not weigh in Harris’s favor. See id. at 329. “In examining the reasons for the delay, we must heed the Supreme Court’s warning that ‘pretrial delay is often both inevitable and wholly justifiable.’ ” United States v. Neal, 27 F.3d 1035, 1043 (5th Cir.1994) (quoting Doggett v. United States, 505 U.S. 647, 656, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). This principle applies fully when, as here, the delay was largely a result of Harris’s myriad pretrial motions, including numerous requests for continuances. See id. Further, Harris has presented no evidence that “the Government act[ed] in bad faith, intentionally holding up prosecution for the purpose of prejudicing the defendant.” Parker, 505 F.3d at 329 (quoting United States v. Hernandez, 457 F.3d 416, 421 (2006)). The second factor therefore cuts strongly against Harris. The third factor, the defendant’s diligence in asserting his speedy trial right, requires a showing that Harris “manifest[ed] his desire to be tried promptly.” United States v. Frye, 489 F.3d 201, 212 (5th Cir.2007) (internal quotation omitted). A motion to dismiss the indictment, particularly when, as here, it is filed over two years after the indictment, is not evidence of such a desire. See id. Rather, an assertion of speedy trial rights generally takes the form of “an objection to a continuance or a motion asking to go to trial.” Id. at 211. Harris has pointed to no such evidence in the record, and his numerous requests for continuances hardly indicate an aggressive assertion of his Sixth Amendment rights. See id. at" } ]

[ { "docid": "4033822", "title": "", "text": "seventy days’ from the later of (1) the ‘filing date’ of the information or indictment or (2) the defendant’s initial appearance before a judicial officer.” United States v. Tinklenberg, — U.S.-, 131 S.Ct. 2007, 2010, 179 L.Ed.2d 1080 (2011) (citation omitted) (quoting 18 U.S.C. § 3161(c)(1)). Reagan’s initial appearance was on October 1, 2007, and his trial did not commence until June 22, 2009, a gap of 628 days. Reagan contends that this delay in bringing him to trial deprived him of his constitutional and statutory rights. Reagan did not move for dismissal of his indictment before the district court on the basis of a Speedy Trial Act violation, and he has therefore waived his statu tory claim. See 18 U.S.C. § 3162(a)(2); see also United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir.1997) (holding a Speedy Trial Act claim waived when a defendant failed to join his co-defendant’s motion to dismiss the indictment). Although the Supreme Court has held that a defendant does not waive his constitutional right to a speedy trial by failing to raise it before the district court, we consider constitutional speedy-trial arguments raised for the first time on appeal for plain error only. See United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir.2003). In assessing a defendant’s claim that he was deprived of his constitutional right to a speedy trial, this court considers four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). “Once a speedy trial analysis is triggered, the court ‘determines whether the first three Barker factors weigh so heavily in favor of the defendant that prejudice is presumed.’ ” United States v. Bishop, 629 F.3d 462, 465 (5th Cir.2010) (quoting United States v. Frye, 489 F.3d 201, 209 (5th Cir.2007)). In the absence of such a presumption, the defendant must affirmatively demonstrate prejudice. See United States v. Molina-Solorio, 577 F.3d 300, 307 (5th Cir.2009). With respect to the length of the delay, in United States" }, { "docid": "8292922", "title": "", "text": "issued Fields a COA in this case. “We ‘review a district court’s conclusions with regard to a petitioner’s § 2255 claim of ineffective assistance of counsel de novo.’ ” United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir.2005) (quoting United States v. Conley, 349 F.3d 837, 839 (5th Cir.2003)). We review “a district court’s refusal to grant an evidentiary hearing on a § 2255 motion for abuse of discretion.” United States v. Cavitt, 550 F.3d 430, 435 (5th Cir.2008). III. DISCUSSION A. The Sixth Amendment guarantees defendants the “right to effective as sistance of counsel at every critical stage of the proceedings against them.” Burdim v. Johnson, 262 F.3d 336, 344 (5th Cir.2001); see Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). This right “is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense.” Yarborough, 540 U.S. at 5, 124 S.Ct. 1 (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). We review claims of ineffective assistance of counsel under the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.1988). To satisfy this test, a petitioner “[f]irst ... must show that [his] counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Second, the petitioner “must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. “This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Id. To do so, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id." }, { "docid": "7178090", "title": "", "text": "Mar. 17, 2009). . Cantu did not advance one of the four claims on appeal. See Appellant’s Br. at 2 n.2. . Id. at 43. . See Ladd v. Cockrell, 311 F.3d 349, 357 (5th Cir.2002) (“Because an ineffective assistance claim is a mixed question of law and fact, we review de novo.’’) (citing Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.1999)). . See Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). . 28 U.S.C. § 2254(d). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . See Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“It is past question that the rule set forth in Strickland qualifies as 'clearly established Federal law, as determined by the Supreme Court of the United States.’ ”). . Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citations omitted). . Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.2002) (internal quotation marks omitted). . See 466 U.S. at 687, 104 S.Ct. 2052. . Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. . Strickland, 466 U.S. at 689, 104 S.Ct. 2052. . Id. at 690-91, 104 S.Ct. 2052. . Wiggins, 539 U.S. at 523, 123 S.Ct. 2527 (emphasis in original). . Strickland, 466 U.S. at 695, 104 S.Ct. 2052. The Supreme Court further defined a \"reasonable probability” as \"a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. . See, e.g., Neal, 286 F.3d at 238 (detailing the significant amount of additional evidence that could have been presented at trial to support the trial counsel's arguments, including \"forty-two pages of affidavits and reports concerning [Appellant’s] background as evidence of mitigating factors”). . See Lagrone v. State, 942 S.W.2d 602, 609-12 (Tex.Crim.App.1997). . Because we hold that the state court reasonably determined that Cantu’s counsel’s performance was not deficient, we need not reach the question of prejudice. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert, denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995) (“In" }, { "docid": "16350517", "title": "", "text": "mixed questions of law and fact, it is reviewed under § 2254(d)(1). See Martin v. Cain, 246 F.3d 471, 475-76 (5th Cir.2001) (mixed questions of law and fact reviewed under unreasonable application prong of § 2254(d)); Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir.1998) (ineffective assistance of counsel claims involve mixed questions of law and fact). . See Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir.2004); Young v. Dretke, 356 F.3d 616, 623 (5th Cir.2004). . Morrow, 367 F.3d at 313 (quoting Williams v. Taylor, 529 U.S. 362, 410-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). . See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003) (citing Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001), cert. denied, 535 U.S. 982, 122 S.Ct. 1463, 152 L.Ed.2d 461 (2002); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc)). . Id. (quoting Catalan v. Cockrell, 315 F.3d 491, 493 & n. 3 (5th Cir.2002) (quotation omitted)). . See Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004); Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001). . 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). . See Soffar v. Dretke, 368 F.3d 441, 471 (5th Cir.2004). . United States v. Harris, 408 F.3d 186, 189 (5th Cir.2005) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). . Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir.2004) (citations and internal quotation marks omitted). . Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (internal quotation marks and alteration omitted) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). . Id. at 527, 123 S.Ct. 2527. . See United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989). . Wilkerson v. Cain, 233 F.3d 886, 892-93 (5th Cir.2000) (citation and internal quotation marks omitted). . Tex.Code.Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Sup.1999)(''[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing[.]”)." }, { "docid": "11557583", "title": "", "text": "based on paper hearing were entitled to presumption of correctness in subsequent federal habeas proceeding when state court habeas judge presided at petitioner’s trial; observing that concerns about inadequacy of “trial by affidavit” is diminished in context where issue is before same judge and factual dispute stems from affidavit in which trial witness alleges false testimony). . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). . Id. at 687-88, 104 S.Ct. at 2064-65. . Id. at 689, 104 S.Ct. at 2065. . Id. at 694, 104 S.Ct. at 2068. \"A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. . Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert. denied, — U.S. —, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). . Clark v. Collins, 19 F.3d 959, 964 (5th Cir.) (citing Streetman v. Lynaugh, 812 F.2d 950 (5th Cir.1987)), cert. denied, — U.S. —, 115 S.Ct. 432, 130 L.Ed.2d 344 (1994). . Clark, 19 F.3d at 964 (citing Joseph v. Butler, 838 F.2d 786 (5th Cir.1988)). . As we determined above that the factfinding procedures employed by the state habeas court in this instance afforded Amos a full and fair hearing, the presumption of correctness applies equally to the factfindings of the state habeas court regarding ineffective assistance of counsel. . Motley, 18 F.3d at 1226 (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984)). . Black v. Collins, 962 F.2d 394, 401 (5th Cir.), cert. denied, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). . The court rejected in a footnote Amos’ claim that his counsel was constitutionally inadequate due to their failure to call witnesses during the punishment phase of his trial. The court later rejected Amos' contention that his counsel was ineffective for failing to ascertain his underlying mental condition and obtaining appropriate expert evaluation and testimony. . The district court noted that Amos did not request leave to file counteraffidavits. . Counsel averred that in the course of these interviews no one mentioned any" }, { "docid": "23703203", "title": "", "text": "597, 606 (3d Cir.2002) (if state court misunderstood the nature of a properly exhausted claim and thus failed to adjudicate that claim on the\" merits, AEDPA’s deferential standards of review are inapplicable). Instead, we review those claims under pre-AEDPA standards of review. See Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir.1998) (applying de novo standard of review to ineffective assistance of counsel claims that were raised in state court, but not adjudicated on the merits); see also Chadwick v. Janecka, 312 F.3d at 605-06; Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir.2001); Weeks v. Angelone, 176 F.3d at 258. B Ineffective Assistance of Counsel Henderson claims that his trial counsel rendered ineffective assistance in two re- speets: First, by failing to move for a mistrial at the close of the prosecution’s case-in-chief; and, second, by failing to object to the admission of gang-related evidence during the guilt-innocence phase of trial. “To establish an ineffective assistance of counsel claim, [Henderson] must show both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” Neal v. Puckett, 286 F.3d at 236 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Counsel’s performance is considered deficient if it ‘falls below an objective standard of reasonableness’ as measured by professional norms.” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “In scrutinizing counsel’s performance, we make every effort to eliminate the distorting effects of hindsight, and do not assume that counsel’s performance is deficient merely because we disagree with trial counsel’s strategy.” Id. (internal quotation marks and citations omitted). “To establish prejudice, [Henderson] must show that there is at least ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 241 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. 1 Ineffective Assistance: Failure to Move for Mistrial Henderson gave two statements to police after his arrest. In the first, he denied any involvement in the" }, { "docid": "15496241", "title": "", "text": "28 U.S.C. § 2254(d)(l)-(2); see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.2002); see also Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). . Williams v. Taylor, 529 U.S. 362, 409, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Rompilla v. Beard, — U.S. —, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005); Brown v. Payton, — U.S. —, 125 S.Ct. 1432, 1438-39, 161 L.Ed.2d 334 (2005). . Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc); see id. (\"[Ojur focus on the unreasonable application’ test under [§] 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.”). . 466 U.S. at 687, 104 S.Ct. 2052; see also Williams, 529 U.S. at 391, 120 S.Ct. 1495 (\"It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.' ”); Schaetzle, 343 F.3d at 443-44. . Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. . Id. at 689, 104 S.Ct. 2052 (internal quotation marks and citation omitted); see also Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir.2005). . Strickland, 466 U.S. at 689, 104 S.Ct. 2052. . Id. at 694, 104 S.Ct. 2052; see also Williams, 529 U.S. at 391, 120 S.Ct. 1495. . Strickland, 466 U.S. at 694, 104 S.Ct. 2052. . Id. at 693, 104 S.Ct. 2052. . Schaetzle, 343 F.3d at 444. . The state habeas court denied relief on this IAC claim without explanation. While we cannot say whether the state court denied the claim for lack of deficiency or for lack of prejudice, we will assume for purposes of this analysis that the state court found both to be lacking. . See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir.2003) (party waived issue by failing to raise it in opening brief); Lockett v. EPA, 319 F.3d 678, 684 n. 16 (5th Cir.2003)" }, { "docid": "14596462", "title": "", "text": "child pornography or pornography by adults posing as children. Accordingly, based upon the analysis above, the Petitioner’s conviction and sentence are valid. The Petitioner’s arguments arising out of the Free Speech Coalition decision are rejected. Ineffective Assistance of Appellate Counsel The Petitioner’s contention that he was denied the effective assistance of counsel is governed by clearly established federal law — specifically by the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): First of all, the petitioner must demonstrate “that counsel’s performance was deficient,” meaning “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, he must show “that the deficient performance prejudiced the defense,” i.e., that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Carter v. Lee, 283 F.3d 240, 248 (4th Cir.2002) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052) (citations omitted). Because the Court has found as a matter of law that the Petitioner is not entitled to relief under the Free Speech Coalition decision, the argument that his appellate counsel was ineffective for not raising the issue must be denied. See Quesinberry v. Taylor, 162 F.3d 273, 278-79 (4th Cir.1998) (“To establish prejudice a petitioner must show ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ If there is no prejudice, a court need not review the reasonableness of counsel’s performance.”) (quoting Strickland v. Washington, 466 U.S. 668, 694, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (noting that there can be no ineffective assistance of counsel in failing to raise an issue which is not legally viable); United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir.1999) (same). Moreover, it appears that the Free Speech Coalition matter was presented to and rejected by the Fourth Circuit during the pendency of the direct appeal. The Petitioner’s father testified that" }, { "docid": "7644888", "title": "", "text": "time on collateral review may be excused. See United States v. Thorn, 659 F.3d at 231. One claim that may appropriately be raised for the first time in a § 2255 motion, “whether or not the petitioner could have raised the claim on direct appeal,” is ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504, 509, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); accord Yick Man Mui v. United States, 614 F.3d 50, 54 (2d Cir.2010). To succeed on an ineffective assistance claim, a petitioner must show that (1) counsel’s performance was objectively deficient, and (2) petitioner was actually prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687-88, 692-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Morales v. United States, 635 F.3d 39, 43 (2d Cir.), cert. denied, — U.S.-, 132 S.Ct. 562, 181 L.Ed.2d 417 (2011). The petitioner’s burden is a heavy one because, at the first step of analysis, we “must ‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ ” Raysor v. United States, 647 F.3d 491, 495 (2d Cir.2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052), viewing the actions in light of the law and circumstances confronting counsel at the time, see Parisi v. United States, 529 F.3d 134, 141 (2d Cir.2008). The determinative question at this step is not whether counsel “deviated from best practices or most common custom,” but whether his “representation amounted to incompetence under prevailing profession al norms.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). At the second step of analysis, a petitioner cannot show prejudice if the claim or objection that an attorney failed to pursue lacks merit. See Aparicio v. Artuz, 269 F.3d 78, 99 n. 10 (2d Cir.2001); cf. Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994) (“Failure to raise meritless objections is not ineffective lawyering; it is the very opposite.”). B. Ineffective Assistance of Counsel With these principles in mind, we first consider Harrington’s claims of ineffective assistance of counsel, which" }, { "docid": "7909837", "title": "", "text": "prior to the effective date of the AEDPA. We treat Moawad’s COA as a CPC, which raises on appeal all of the issues presented below. See Green v. Johnson, 116 F.3d 1115, 1119—20 (5th Cir.1997) (applying pre-AEDPA law to § 2254 petition filed before April 24, 1996); Sherman v. Scott, 62 F.3d 136, 139 (5th Cir.1995) (CPC gives circuit court jurisdiction over the entire judgment entered by the district court), cert. denied, 516 U.S. 1180, 116 S.Ct. 1279, 134 L.Ed.2d 225 (1996). We have jurisdiction under 28 U.S.C. § 1291. II To succeed on an ineffective assistance claim against either his trial or appellate counsel, Moawad must satisfy both prongs of the Strickland test. See Ellis v. Lynaugh, 873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989). First, the defendant must demonstrate that counsel’s performance was deficient. This task requires a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Moawad must establish that counsel’s acts “fell beneath an objective standard of reasonable professional assistance.” Gray v. Lynn, 6 F.3d 265, 268 (5th Cir.1993) (citations omitted). This court gives “ ‘great deference to counsel’s assistance, strongly presuming that counsel has exercised reasonable professional judgment.’ ” Id. (quoting Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir.1984)). “Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “[Moawad] must demonstrate ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Gray, 6 F.3d at 269 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). “[B]oth components of this inquiry are mixed questions of law and fact; accordingly, [this court] generally ‘must make an independent determination of whether counsel’s representation passed constitutional muster.’ ” Id. at 268 (quoting" }, { "docid": "2783846", "title": "", "text": "to vacate his sentence in a § 2255 motion. See United States v. Carmouche, No. 95-30180, slip op. at 7 (5th Cir. Oct. 20, 1995) (unpublished) (and cases cited therein). Williamson should have raised this argument on direct appeal; it is not cognizable now. B. This inaction is the gravamen of Williamson’s second claim. He avers that his counsel rendered ineffective assistance by failing to challenge the career offender enhancement on appeal, when it would have been cognizable. We review an ineffective assistance of counsel claim de novo. See United States v. Flores-Ochoa, 139 F.3d 1022, 1024 (5th Cir.1998). The entitlement to effective assistance does not end when the sentence is imposed, but extends to one’s first appeal of right. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir.1998). We judge counsel’s appellate performance under the same two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applicable to trial performance. See Green, 160 F.3d at 1043. To prevail, Williamson must establish, first, that his attorney’s representation was deficient and, second, that the deficient performance caused him prejudice. See Washington, 466 U.S. at 687-88, 692, 104 S.Ct. 2052; Jones v. Jones, 163 F.3d 285, 300 (5th Cir.1998). 1. To prove deficient performance, Williamson must show that counsel’s failure to raise the Bellazerius argument “fell below an objective standard of reasonableness.” Id. at 301 (quoting Washington, 466 U.S. at 688, 104 S.Ct. 2052). Our review is deferential, presuming that “counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (quotation omitted). Counsel does not need to “raise every nonfrivolous ground of appeal available.” Green, 160 F.3d at 1043. Nonetheless, a reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. See Washington, 466 U.S. at 690-91, 104 S.Ct. 2052; Childress v. Johnson, 103 F.3d 1221, 1227 (5th Cir.1997). Solid, meritorious arguments based on directly-controlling precedent should be discovered and brought to the court’s attention. Williamson’s" }, { "docid": "17077158", "title": "", "text": ". Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (alteration in original) (quoting Strickland, 466 U.S. at 686, 104 S.Ct 2052) (internal quotation marks omitted). . Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). . Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). . Pinholster, 131 S.Ct. at 1403. . Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. . Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). . United States v. Conley, 349 F.3d 837, 841 (5th Cir.2003) (quoting United States v. Phillips, 210 F.3d 345, 348 (5th Cir.2000)) (internal quotation marks omitted). . Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir.1998) (citing Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). . Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). . Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 790, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)). . Tex.R.App. P. 33.1(a) (providing that issues on appeal must have been objected to and ruled on below). . Smith, 528 U.S. at 288, 120 S.Ct. 746. . Dorsey v. State, 117 S.W.3d 332, 344 (Tex. App.-Beaumont 2003, pet. ref d). . See, e.g., Richter, 131 S.Ct. at 791 (“[I]t is difficult to establish ineffective assistance when counsel’s overall performance indicates active and capable advocacy.”). . See Smith, 528 U.S. at 285, 120 S.Ct. 746 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). . Strickland, 466 U.S. at 694, 104 S.Ct. 2052. . Id. at 693, 104 S.Ct. 2052. . Richter, 131 S.Ct. at 792. . See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir.2001) (“Each of the grounds underlying the alleged errors by counsel have been ... found to lack merit. Therefore, appellate counsel’s failure to pursue relief on those bases does not constitute ineffective assistance of counsel since no prejudice resulted" }, { "docid": "7194473", "title": "", "text": "own observation of those disabilities throughout the pretrial decision-making period. The district court denied Bishop’s motion without a hearing. Bishop was sentenced to a thirty-six month term on each count, with the sentences to run concurrently, and three concurrent one-year terms of supervised released. This appeal follows. II Bishop contends that the district court should have concluded that the delay in trying her was presumptively prejudicial. A defendant’s Sixth Amendment speedy trial claim is evaluated pursuant to a four-factor balancing test considering: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s diligence in asserting her Sixth Amendment right; and (4) any prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also United States v. Frye, 489 F.3d 201, 209 (5th Cir.2007). Once a speedy trial analysis is triggered, the court “determines whether the first three Barker factors weigh so heavily in favor of the defendant that prejudice is presumed.” Frye, 489 F.3d at 209 (internal quotations and citation omitted). If the first three factors do not justify a presumption of prejudice, “then the defendant bears the burden of establishing actual prejudice and demonstrating that such prejudice is sufficient to outweigh the other three factors.” Frye, 489 F.3d at 209. We review the trial court’s weighing of the Barker factors de novo. United States v. Molinar-Solorio, 577 F.3d 300, 304 (5th Cir.2009). We review its underlying findings of facts, however, for clear error. Id. at 303 (citing United States v. Frye, 372 F.3d 729, 735 (5th Cir.2004)). A Bishop contends that the length of her post-indictment delay weighs in favor of concluding that the delay was presumptively prejudicial. In considering the length of a delay, this court has generally held that delays of less than five years are insufficient, by duration alone, to give rise to a presumption of prejudice and relieve the defendant of satisfying Barker’s fourth prong. See United States v. Parker, 505 F.3d 323, 328-29 (5th Cir.2007) (delay of 17 months insufficient to presume prejudice); see also United" }, { "docid": "13131144", "title": "", "text": "objectively unreasonable. Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). The state-court’s determination of the facts on which it based its decision is “presumed to be correct” in the context of § 2254(d)(2). The habeas petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence”. 28 U.S.C. § 2254(e)(1). An evidentiary hearing having been held in district court, its findings of fact are reviewed for clear error; its conclusions of law, de novo. E.g., Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir.), cert. denied, 537 U.S. 1084, 123 S.Ct. 690, 154 L.Ed.2d 586 (2002). A finding is clearly erroneous only if it is implausible in the light of the record considered as a whole. E.g., United States v. Cluck, 143 F.3d 174, 180 (5th Cir.1998), cert. denied, 525 U.S. 1073, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999). For an IAC claim, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides the relevant underlying federal law. To prevail on such a claim in state court, St. Aubin had to show: (1) LTC’s performance was deficient; and (2) that performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. Under Strickland’s first prong, St. Aubin had to show in state court that his LTC’s representation “fell below an objective standard of reasonableness”. Id. at 688, 104 S.Ct. 2052. Courts start with the presumption that counsel’s conduct falls within the wide range of reasonable professional conduct. Soffar v. Dretke, 368 F.3d 441, 471 (5th Cir.2004). Under the second prong, St. Aubin had to show in state court “there is a reasonable probability that, but for his LTC’s unprofessional errors, the result of the proceeding would have been different”. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As reflected above, a federal court’s AEDPA review of a state-court denial of an IAC claim does not include determining whether St. Aubin established IAC by satisfying each of Strickland’s prongs. E.g., Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003), cert. denied, 540 U.S. 1154, 124 S.Ct. 1156, 157" }, { "docid": "21627896", "title": "", "text": "App. 1995)). . Id. at 131-44 (Overstreet, J., dissenting). . In 2005, Texas eliminated the possibility of parole for capital defendants sentenced to life in prison. Tex. Code. Crim. P. art. 37.071 § 2(g). . 512 U.S. 154, 162-64, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). . 40 F.3d 731, 733 (5th Cir. 1994). . See id. . Kinnamon, 40 F.3d at 733. See also Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir. 1995). . 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at 687-88, 104 S.Ct. 2052. . Id. at 689, 104 S.Ct. 2052. . Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993). . Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). . Strickland, 466 U.S. at 687, 104 S.Ct. 2052. . Id. at 694, 104 S.Ct. 2052. . Defense counsel did object that some of the statements were unsupported by the evidence, but that objection was overruled. . Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). . United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010) (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)). . Rivera v. Collins, 934 F.2d 658, 661 (5th Cir. 1991). . Cullen v. Piriholster, 563 U.S. 170, 190, 131 S.Ct 1388, 179 L.Ed.2d 557 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct 1411, 173 L.Ed.2d 251 (2009)). . Strickland, 466 U.S. at 690, 104 S.Ct. 2052. . Florida v. Nixon, 543 U.S. 175, 191, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). . Powers v. Ohio, 499 U.S. 400, 410-16, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). . 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Id. at 96-97, 106 S.Ct. 1712 . Id. at 97, 106 S.Ct. 1712. When the state trial court called on the government to provide race-neutral justifications, we assume that the defendant satisfied his or her initial burden. United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998). . Batson, 476 U.S. at 97, 106" }, { "docid": "17077157", "title": "", "text": "reasonableness of the Kentucky Supreme Court's decision.”); Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1866, 176 L.Ed.2d 678 (2010) (holding that a Sixth Circuit decision \"does not constitute 'clearly established Federal law, as determined by the Supreme Court’ ” (quoting § 2254(d)(1))). . 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). . Muniz, 496 U.S. at 590-91, 110 S.Ct. 2638 (internal citation omitted). . Parker, 132 S.Ct. at 2155 (quoting Harrington v. Richter, -U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)) (internal quotation marks omitted). . See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (quoting Brecht, 507 U.S. at 631, 113 S.Ct. 1710). . See, e.g., Evitts v. Lucey, 469 U.S. 387, 397-98, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Strickland, 466 U.S. at 687, 104 S.Ct. 2052. . Id. at 689, 104 S.Ct. 2052. . Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (alteration in original) (quoting Strickland, 466 U.S. at 686, 104 S.Ct 2052) (internal quotation marks omitted). . Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). . Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). . Pinholster, 131 S.Ct. at 1403. . Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. . Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). . United States v. Conley, 349 F.3d 837, 841 (5th Cir.2003) (quoting United States v. Phillips, 210 F.3d 345, 348 (5th Cir.2000)) (internal quotation marks omitted). . Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir.1998) (citing Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). . Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). . Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 790, 178 L.Ed.2d 624 (2011) (quoting Yarborough v." }, { "docid": "16350518", "title": "", "text": "229, 237 (5th Cir.2001). . 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). . See Soffar v. Dretke, 368 F.3d 441, 471 (5th Cir.2004). . United States v. Harris, 408 F.3d 186, 189 (5th Cir.2005) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). . Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir.2004) (citations and internal quotation marks omitted). . Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (internal quotation marks and alteration omitted) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). . Id. at 527, 123 S.Ct. 2527. . See United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989). . Wilkerson v. Cain, 233 F.3d 886, 892-93 (5th Cir.2000) (citation and internal quotation marks omitted). . Tex.Code.Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Sup.1999)(''[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing[.]”). . 46 S.W.3d 493 (Tex.App.—El Paso 2001, no pet.). . This analysis tracks Texas's test for evaluating the admissibility of scientific evidence in criminal trials. First, the evidence must be “reliable (and thus probative and relevant)!)]” and second, the evidence must not be \"un helpful to the trier of fact for other reasons.” Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992); see Tex.R. Evid. 702 (\"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”). .Muhammad, 46 S.W.3d at 498. . Organic brain syndrome is marked by “Psychiatric or neurological symptoms, including problems with attention, concentration, and memory, confusion, anxiety, and depression, arising from damage to or disease in the brain.” See MedicineNet.com, Med-Terms Dictionary, Organic Brain Syndrome, at http://www.medterms.com/script/main/art. asp?articlekey= 11781 (last visited July 21, 2005). . At Miller’s trial, Alfred Prismeyer testified that his wife," }, { "docid": "4277483", "title": "", "text": "to make out a claim of ineffective assistance of counsel, Mr. Rushin “must show that (1) his counsel’s performance was constitutionally deficient, and (2) counsel’s deficient performance was prejudicial.” United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In applying the two-part Strickland test, however, it is well-settled that we “may address the performance and prejudice components in any order, [and] need not address both if [petitioner] fails to make a sufficient showing of one.” Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir.2005) (second alteration in origi nal) (quoting Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir.1998)) (internal quotation marks omitted). In other words, a reviewing court may, if it appears to be the more sensible course of action, “proceed directly to the prejudice prong of the Strickland analysis.” United States v. Gonzalez, 596 F.3d 1228, 1233 (10th Cir.), cert. denied, — U.S. -, 131 S.Ct. 172, 178 L.Ed.2d 102 (2010). Contrary to the majority’s conclusion, I am not wholly persuaded that trial counsel’s performance may be considered reasonable under the circumstances. It is at least arguable, in my opinion, that counsel’s failure to file a motion to dismiss “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Therefore, I think it more prudent to leave the performance question unanswered and to resolve this case under the prejudice prong. I. Deficient Performance In evaluating whether counsel’s performance was deficient, we often “look to the merits of the omitted issue.” Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (quoting Gargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003)) (internal quotation marks omitted). If the motion underlying the ineffective-assistance claim — in this case, a motion to dismiss under the Speedy Trial Act (“STA”), 18 U.S.C. §§ 3161-74 — -would have been meritless, then counsel’s performance cannot be said to be deficient because “[cjounsel is not required by the Sixth Amendment to file meritless motions.” United States v. Gibson, 55 F.3d 173, 179 (5th Cir.1995). As" }, { "docid": "4033823", "title": "", "text": "failing to raise it before the district court, we consider constitutional speedy-trial arguments raised for the first time on appeal for plain error only. See United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir.2003). In assessing a defendant’s claim that he was deprived of his constitutional right to a speedy trial, this court considers four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). “Once a speedy trial analysis is triggered, the court ‘determines whether the first three Barker factors weigh so heavily in favor of the defendant that prejudice is presumed.’ ” United States v. Bishop, 629 F.3d 462, 465 (5th Cir.2010) (quoting United States v. Frye, 489 F.3d 201, 209 (5th Cir.2007)). In the absence of such a presumption, the defendant must affirmatively demonstrate prejudice. See United States v. Molina-Solorio, 577 F.3d 300, 307 (5th Cir.2009). With respect to the length of the delay, in United States v. Parker, 505 F.3d 323 (5th Cir.2007), we held that delays of less than five years cannot alone support a presumption of prejudice. Id. at 328-29. The second and third Barker factors both militate against a presumption of prejudice: the delay was partially attributable to Reagan’s requests for two continuances owing to the complexities of the case, which the district court granted, see Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.1994) (“Where the state advances valid reasons for the delay, or the delay is attributable to acts of the defendant, this factor is weighed in favor of the state.”), and Reagan never asserted his right to a speedy trial. Because none of these factors supports a presumption of prejudice, and because the delay was not long enough to require a presumption of prejudice by itself, we do not presume prejudice. Reagan bore the burden of showing that he was prejudiced by the delay in bringing him to trial. Molina-Solorio, 577 F.3d at 307. As Reagan has not argued that he was actually prejudiced by" }, { "docid": "20654880", "title": "", "text": "379 (2012). Shortly thereafter, the government opposed the Request. See Docket No. 685. Four days after filing the Motion for Reconsideration, the defendant entered a Notice of Appeal of the Judgment against him. See Docket No. 682. On April 28, 2014 the defendant filed an Emergency Motion asking the Court to express its position as to whether it would grant or deny the Motion for Reconsideration in light of the provisions of Fed. R.App. P. 12.1. See Docket No. 695. The Court acquiesced, expressing that it would consider the Motion for Reconsideration “as it raised substantial issues that the Court would like to examine.” Id. II. STANDARD OF REVIEW To prevail on a claim of ineffective assistance of counsel, the petitioner must show both that counsel’s performance was deficient and that it resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Shuman v. Spencer, 636 F.3d 24, 31 (1st Cir.2011). If he falls short on either requirement, his claim fails. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Deficient performance means that trial counsel’s representation failed to meet “an objective standard of reasonableness.” Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052) (internal quotation marks omitted). Counsel’s performance is deficient only if, “given the facts known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.” Id. (citing Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006)). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see also Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 .Ed.2d 624 (2011). Moreover, the petitioner must show a “reasonable probability” that if counsel had acted differently, his trial would have had a more favorable outcome. Tevlin, 621 F.3d at 66 (citing Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009)) (internal quotations marks omitted.) The Supreme Court has long recognized that the" } ]

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

[ { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "22327723", "title": "", "text": "was incorrect. See 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a)(3). In this Court, Clark requests a Certificate of Appealability (COA) and again seeks leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1), 24(a)(5). Background Clark’s habeas petition stems from four state cases. In one case, a jury convicted Clark of two counts. He then pled guilty to three other pending cases pursuant to a plea agreement. On December 20, 2002, he was sentenced to twenty years imprisonment for the charges on which the jury found him guilty. At the same time, pursuant to the plea agreement, the court sentenced him on the remaining charges, running all sentences concurrently. Clark did not move to withdraw his guilty pleas, file a direct appeal, or seek a writ of certiorari from the United States Supreme Court. As a result, the judgments on Clark’s convictions became final ten days later, December 30, 2002. Okla. Stat. tit. 22, § 1501; Okla.Crim.App. R. 2.5(A) & 4.2(A). Clark filed his habeas petition in federal court on November 3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and" }, { "docid": "18025546", "title": "", "text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "22276151", "title": "", "text": "has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at 342, 123 S.Ct. at 1042. That means a petitioner is not required to demonstrate entitlement to appellate relief in order to be given an opportunity to pursue it. Still, the certificate of appealability requirement is not a toothless one, and it should be applied with its purpose in mind, which is to separate out those appeals that deserve more careful attention from the ones that do not. More than the absence of frivolity or the presence of good faith is required for a petitioner to clear this hurdle. Id. at 335-38, 123 S.Ct. at 1039-40. Of particular relevance to the three cases we have before us, each of which involves Rule 60(b) procedural issues in addition to merits issues, is the Slack decision. In that case the district court had denied the habeas petition on procedural grounds without reaching the underlying constitutional claim. Slack, 529 U.S. at 484, 120 S.Ct. at 1604. The Supreme Court held that in those circumstances a certificate of appealability should issue only if the petitioner makes both a substantial showing" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "23197595", "title": "", "text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "3835519", "title": "", "text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to- proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "22276150", "title": "", "text": "every time there is a Rule 60(b) denial in a habeas case and the petitioner elects to appeal. And prisoners will almost always elect to appeal given all the free time on their hands. See Harris v. Garner, 216 F.3d 970, 978-79 (11th Cir.2000) (en banc). The dissent would have the courts of appeal entertain and decide each of those appeals no matter how clearly non-meritorious it appeared from the outset, and no matter whether it was from the denial of the first or fifth or fifteenth Rule 60(b) motion the petitioner had filed. Congress could not have intended that. For all of these reasons, we conclude that the certificate of appealability requirement applies not only to all final judgments denying § 2254 or § 2255 relief, but also to all final judgments denying Rule 60Q3) relief from those earlier final judgments. III. The next question up is whether certificates of appealability should be issued in the three cases before us. Congress has provided that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" } ]

[ { "docid": "22348747", "title": "", "text": "evidence that his plea was not knowing or not voluntary; 2) whether the defendant has credibly asserted his legal innocence; 3) whether there has been a delay between the entering of the plea and the filing of the motion; 4) whether the defendant has had close assistance of competent counsel; 5) whether withdrawal will cause prejudice to the government; 6) and whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.) cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). In Lambey, however, we stated that a “fair and just” reason for withdrawing a guilty plea is one that “essentially challenges ... the fairness of the Rule 11 proceeding.” Lambey, 974 F.2d at 1394. We emphasized that an “appropriately conducted Rule 11 proceeding ... raise[s] a strong presumption that the plea is final and binding.” Id. In this case, the district court engaged in a thorough Rule 11 colloquy with Pamela Puckett. The court informed her of the mandatory minimum penalty. The court also informed the defendant that it could not determine the guideline sentence until after the presentence report had been completed. During the colloquy, Pamela acknowledged that the sentence could be more or less severe than she expected. Additionally, the plea agreement indicated that Puckett understood that sentencing was within the sole discretion of the court, and that the guidelines applied, possibly creating a mandatory period of incarceration. The parties also stipulated to a low drug weight in order to minimize the severity of her sentence. Thus, prior to accepting Pamela’s guilty plea, the district court fulfilled its requirements under Rule 11 and also ascertained that the defendant read and understood the plea agreement. Pamela Puckett’s motion to withdraw her plea rests solely upon her allegation that the district court erred by not providing her with sentencing guideline information prior to her guilty plea. In United States v. Good, 25 F.3d 218, 219 (4th Cir.1994), we held that Rule 11(c)(1) does not require a district court to advise the defendant about the applicable guideline range" } ]

[ { "docid": "22630043", "title": "", "text": "case for further proceedings. I. Each of the defendants challenges the validity of his guilty plea to wire fraud. We review their challenges in turn. A. Shortly after entering his guilty plea in August 1997, but before sentencing, Ubak-anma wrote the court requesting that his plea be withdrawn and that new counsel be appointed. He asserted that he is innocent and that he had pleaded guilty due to his attorney’s intimidation and poor advice. The district court denied this motion without a hearing. Ubakanma asserts on appeal that the court erred in denying his requests to withdraw his guilty plea and for appointment of new counsel. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Brown, 617 F.2d 54 (4th Cir.1980). There is no absolute right to withdraw a guilty plea, see United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991), thus the defendant has the burden of showing a fair and just reason for withdrawal. See id.; see also United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.1995) (a “fair and just” reason is one that “essentially challenges” the fairness of a proceeding under Fed. R.Crim.P. 11). In determining whether a defendant has met his burden, courts consider multiple factors: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. See Moore, 931 F.2d at 248. On the first factor, the record reflects that the district court conducted a thorough and comprehensive Rule 11 hearing prior to accepting Ubakanma’s guilty plea. In that proceeding, Ubakanma acknowledged under oath that the factual stipulations underlying his plea (and read into the record in open court) were true. He stated, among other things, that" }, { "docid": "22630042", "title": "", "text": "Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge TRAXLER joined. OPINION KING, Circuit Judge: In these consolidated actions, Christian Ubakanma and Chidozie Onyekonwu appeal their convictions and sentences in the District of Maryland, following their guilty pleas to a single count of wire fraud, in violation of 18 U.S.C. § 1343. The plea agreements stipulated facts detailing the defendants’ respective roles in a fraud scheme involving solicitations for investments in a fictitious contract with the Nigerian government. For the reasons explained below, we affirm Ubakanma’s conviction and sentence of thirty months in custody and three years of supervised release. However, we vacate the district court’s order that Ubakanma pay $5,400 in restitution, and we remand this aspect of his case for further proceedings. We likewise affirm Onyekonwu’s wire fraud conviction. However, we vacate his sentence of forty-six months of incarceration and five years of supervised release, as well as the order that he pay $12,000 in restitution. We also remand Onyekonwu’s case for further proceedings. I. Each of the defendants challenges the validity of his guilty plea to wire fraud. We review their challenges in turn. A. Shortly after entering his guilty plea in August 1997, but before sentencing, Ubak-anma wrote the court requesting that his plea be withdrawn and that new counsel be appointed. He asserted that he is innocent and that he had pleaded guilty due to his attorney’s intimidation and poor advice. The district court denied this motion without a hearing. Ubakanma asserts on appeal that the court erred in denying his requests to withdraw his guilty plea and for appointment of new counsel. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Brown, 617 F.2d 54 (4th Cir.1980). There is no absolute right to withdraw a guilty plea, see United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991), thus the defendant has the burden of showing a fair and just reason for withdrawal. See id.; see also United States v." }, { "docid": "6665702", "title": "", "text": "of the two-day bench trial, the court found Owens guilty on all counts. Owens then filed a post-trial motion for acquittal or for a new trial, again attacking Rogers’ identification and the sufficiency of the evidence. The district court denied this motion. It determined that the identification procedures were reliable even if Rogers’ placement in the same cell had been unduly suggestive. Rogers and Owens were sentenced to 51 and 97 months’ imprisonment, respectively- ' II DISCUSSION A. Standard of Review This court reviews the denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Roque-Espinoza, 338 F.3d 724, 726 (7th Cir.2003). We review the district court’s factual findings for clear error. United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). On Mr. Owens’ challenge to the sufficiency of the evidence, we shall affirm his conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Curtis, 324 F.3d 501, 505 (7th Cir.2003). In making this evaluation, we must draw all reasonable inferences in favor of the Government without reweighing the evidence or witness credibility. United States v. Senffner, 280 F.3d 755, 760 (7th Cir.2002). We review de novo the refusal to suppress Mr. Rogers’ identifica tion of Mr. Owens, with due deference given to the district court’s findings of fact. United States v. Harris, 281 F.3d 667, 669-70 (7th Cir.2002). B. Theodore Rogers A defendant may be allowed to withdraw a guilty plea if he “can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B); see Bennett, 332 F.3d at 1099. Mr. Rogers bears the burden of demonstrating a fair and just reason. Bennett, 332 F.3d at 1099. Mr. Rogers submits that the district court abused its discretion in denying his motion to withdraw his plea. In his view, he could have demonstrated a likelihood of success on his suppression motion — had he been allowed to argue it. Therefore, he" }, { "docid": "17863902", "title": "", "text": "his guilty plea was involuntary because he was not advised that he could not withdraw his plea if the court decided to disregard the Memorandum of Understanding Regarding Guilty Plea (“Memorandum of Understanding”). Rule 11(e)(2) provides that “[i]f the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.” Therefore, Jackson’s claim turns on whether the plea agreement is a Rule 11(e)(1)(B) agreement. Rule 11(e)(1)(B) allows an attorney for the government to “make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court.” The Memorandum of Understanding in this case reveals that the government only moved to dismiss other charges and did not make a recommendation or agree not to oppose the defendant’s request for a particular sentence. The Memorandum of Understanding did specify “that the amount of cocaine base found on the defendant’s person was 11.2 grams.” However, this statement can in no way be construed to be the government’s sentencing recommendation. The statement is only one fact — among many — that the district court could take into consideration in sentencing the defendant. The specification of a particular amount of drugs in the defendant’s possession simply cannot change this agreement into a Rule 11(e)(1)(B) agreement. Indeed, the Memorandum specifically states that “the United States has made NO AGREEMENT to approve, to oppose, or not to oppose pursuant to Rule 11(e)(1)(b).” Therefore, we must conclude that the district court was not required to inform Jackson that it could reject the Memorandum and that Jackson subsequently would not be allowed to withdraw his plea of guilty. Jackson asserts that the court’s failure to warn Jackson that he would not be allowed to withdraw his guilty plea rendered the plea involuntary. Essentially, Jackson claims that he did not understand his plea and the sentencing consequences that would follow. The district court directly inquired whether Jackson understood" }, { "docid": "17863892", "title": "", "text": "TACHA, Circuit Judge. On September 17, 1990, defendant-appellant David Jackson entered a plea of guilty to possession of more than five grams of cocaine base. The plea agreement specified that Jackson was in possession of 11.2 grams of cocaine at the time of his arrest. The presentence report, on the other hand, also took into account 98.1 grams of cocaine base seized from several motel rooms used in appellant’s operation. Therefore, the report stated that the offense involved an aggregate amount of 109.3 grams of cocaine. Jackson objected to the aggregate amount and advised that he would withdraw his plea of guilty if the aggregate amount was used in determining his sentence. At the sentencing hearing on December 5, 1990, the district court informed Jackson that it would follow the presentence report. Jackson subsequently moved to withdraw his guilty plea. The district court promptly denied the motion and sentenced Jackson to one hundred and thirty-six months in prison and three years’ supervised release. On December 11, 1990, Jackson filed a motion requesting that the district court reconsider its denial of the motion to withdraw the guilty plea. Jackson also filed a notice of appeal from the judgment and conviction on December 14, 1990. On February 21, 1991, Jackson’s motion to reconsider was denied by order of the district court. A new notice of appeal was not filed. The government contends that we are without jurisdiction in this matter because Jackson’s December 14, 1990 notice of appeal was premature. Because we disagree with the government, we exercise jurisdiction under 28 U.S.C. § 1291, we remand this case to the district court for the ministerial task of appending its findings to the presentence report, and we affirm in all other respects. JURISDICTION Rule 4(b) of the Rules of Appellate Procedure governs criminal appeals. Rule 4(b) provides in part: In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by the government. ... If a" }, { "docid": "14596474", "title": "", "text": "reasonableness, and that but for counsel’s alleged substandard performance, there is a reasonable probability that [he] would not have pleaded guilty.” United States v. Craig, 985 F.2d 175, 179 (4th Cir.1993) (citations omitted). Further, where the issue revolves around knowledge of the potential consequences of pleading guilty, courts find that a proper Rule 11 plea colloquy generally cures any improper advice given prior to the plea. E.g., Lambey, 974 F.2d at 1394-95. If, however, at the Rule 11 hearing, the court specifically warns the defendant of possible results different from those he anticipated because of the prior event or advice, then the defendant bears a heavy burden when attempting to demonstrate that the prior event or advice should form the basis of a fair and just reason for a later withdrawal of his plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice sys-tern can rely, it must be recognized to raise a strong presumption that the plea is final and binding. Id. at 1394. Here, there is no specific argument that Wyman did or did not advise the Petitioner of certain facts, such as the proof against him, the elements of the offense or the statutory penalty, which could have affected his decision to plead guilty. Nor is there any assertion that the Court’s plea colloquy was defective in any way. The Court advised the Petitioner of the statutory range of penalty, of the pre-sentence investigation process, and of the possibility that his Guideline sentence may be totally different than that which he and his attorney anticipated. The Petitioner indicated that he fully understood this and decided to proceed with his guilty plea. Merely receiving a larger sentence than that which you expected is not grounds to vacate a plea. See Lambey, 974 F.2d at 1394-95. The Petitioner makes much ado about the fact that there were three different pre-sentence reports with three different sentencing recommendations, each higher in penalty (offense levels of 18, 25, and 33). However, the Petitioner admitted at hearing that he was aware of several potential" }, { "docid": "22474198", "title": "", "text": "Wilson’s motion to withdraw the guilty plea.... J.A. 145. The appellant was subsequently sentenced to forty-six months imprisonment. II. A refusal by the district court to allow a appellant to withdraw a guilty plea under Rule 32(e), Fed.R.Crim.P., is reviewed on appeal for abuse of discretion. Moore, 931 F.2d at 248. Appellant makes essentially a two-pronged attack against the district court’s denial of his motion to withdraw the guilty plea. Appellant’s first asks this court to adopt the analysis of the District of Columbia Court of Appeals in United States v. Cray, 47 F.3d 1203 (D.C.Cir.1995), where that court held that the validity of the Rule 11 proceeding was the most important inquiry in determining whether the defen dant had a “fair and just reason” to withdraw a guilty plea. Id. at 1207. Other factors identified by the D.C. Circuit include whether defendant has made a credible claim of legal innocence, and whether the government has been prejudiced by the delay in proceeding to trial. Id. To support the adoption of Cray in this Circuit, appellant cites United States v. Lambey, 974 F.2d 1389 (4th Cir.1992), cert. denied, — U.S. -, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994), which, in reviewing the Advisory Notes to the 1983 amendment to Rule 32, identifies the fairness of the Rule 11 proceeding as most important. Id. at 1394. We also stated in' Lambey that a “fair and just reason” is either essentially a challenge to the validity of the Rule 11 proceeding or a challenge to the “fulfillment of a promise or condition emanating from the proceeding.” Id. at 1393-94. Lambey did not address the test laid out in Moore two years earlier. Thus appellant argues that Cray and Lambey, rather than Moore, should control. Alternatively, appellant claims that under the test currently used by this Circuit as set forth in Moore, 931 F.2d at 248, appellant should have been allowed to withdraw his plea of guilty. The six-factor analysis in Moore requires the trial court to weigh the following: (1) whether the defendant has offered credible evidence that his plea was not" }, { "docid": "22066805", "title": "", "text": "or at a minimum, in refusing to hold a hearing to assess the various issues raised in his motions. More specifically, he complains that his attorney only had three months to review the case with him, which, in combination with the district court’s dispensing with the Blakely inquiry entirely at his plea colloquy, resulted in his failure to grasp the effect of Blakely on his sentence. Brehm also argues that the “court’s one sentence inquiry ... regarding ... the mandatory minimum ... was wholly inadequate.” Appellant’s Br. at 21. Finally, although he acknowledges the government’s expert’s finding that Brehm clearly met the diagnostic criteria for schizophrenia yet was not rendered unable to understand the nature and consequences of the proceedings against him, Brehm points out that the same expert wrote that his condition might deteriorate under stress or other precipitating factors. We “review the denial of a request to withdraw a guilty plea for abuse of discretion.” United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir.2003). There is no abuse of discretion unless the denial is “arbitrary or unreasonable.” United States v. Weaver, 275 F.3d 1320, 1328 n. 8 (11th Cir.2001). A district court’s refusal to hold an evidentiary hearing is also reviewed for abuse of discretion. See United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.1986). It does not amount to abuse of discretion when a court has conducted extensive Rule 11 inquiries prior to accepting the guilty plea. Id. The Federal Rules of Criminal Procedure require a district court, before it accepts a plea of guilty, to inform the defendant of his rights relevant to his guilty plea and determine that he understands them. Fed.R.Crim.P. 11(b)(1). After the district court has accepted a plea and before sentencing, a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). In determining whether the defendant has met his burden to show a “fair and just reason,” a district court “may consider the totality of the circumstances surrounding the plea.” United States v. Buckles, 843 F.2d 469," }, { "docid": "17863903", "title": "", "text": "found on the defendant’s person was 11.2 grams.” However, this statement can in no way be construed to be the government’s sentencing recommendation. The statement is only one fact — among many — that the district court could take into consideration in sentencing the defendant. The specification of a particular amount of drugs in the defendant’s possession simply cannot change this agreement into a Rule 11(e)(1)(B) agreement. Indeed, the Memorandum specifically states that “the United States has made NO AGREEMENT to approve, to oppose, or not to oppose pursuant to Rule 11(e)(1)(b).” Therefore, we must conclude that the district court was not required to inform Jackson that it could reject the Memorandum and that Jackson subsequently would not be allowed to withdraw his plea of guilty. Jackson asserts that the court’s failure to warn Jackson that he would not be allowed to withdraw his guilty plea rendered the plea involuntary. Essentially, Jackson claims that he did not understand his plea and the sentencing consequences that would follow. The district court directly inquired whether Jackson understood that he could be sentenced to a maximum term of twenty years or a minimum sentence of five years. Jackson responded that he understood. Given this record, it is clear that Jackson was informed of and comprehended both the nature and the consequences of his plea of guilty. Appellant argues that the district court failed to comply with § 6Bl.l(b) of the Sentencing Guidelines. This section only applies to plea agreements under Rule 11(e)(1)(B). Because we hold that the plea agreement in this case is not a Rule 11(e)(1)(B) plea agreement, this claim also must fail. Jackson asserts that he was denied due process because state law enforcement officers arbitrarily charged him in federal court without written policy guidelines, without procedural review, and without constitutionally permissive standards. Jackson failed to raise this argument below. Failure to raise an error at the district court level precludes review of the issue by this court. See United States v. Frederick, 897 F.2d 490, 494 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990);" }, { "docid": "17863901", "title": "", "text": "the district court failed to comply with Rule 11(e)(2) of the Federal Rules of Criminal Procedure. Second, appellant argues that the district court’s refusal to be bound by the plea agreement rendered the plea of guilty involuntary. Third, Jackson contends that the district court did not comply with § 6Bl.l(b) of the Sentencing Guidelines when it failed to advise the defendant that the court is not bound by sentencing recommendations and that the defendant has no right to withdraw a guilty plea if the court decides not to accept plea recommendations. Fourth, appellant contends that he was denied due process when he was charged in federal rather than state court. Fifth, Jackson argues that the court’s actions resulted in an impermissible disparity in that Jackson was sentenced more severely than his codefendants. Finally, appellant asserts that the district court failed to comply with Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. We first address whether the district court failed to comply with Rule 11(e) of the Federal Rules of Criminal Procedure. Jackson contends that his guilty plea was involuntary because he was not advised that he could not withdraw his plea if the court decided to disregard the Memorandum of Understanding Regarding Guilty Plea (“Memorandum of Understanding”). Rule 11(e)(2) provides that “[i]f the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.” Therefore, Jackson’s claim turns on whether the plea agreement is a Rule 11(e)(1)(B) agreement. Rule 11(e)(1)(B) allows an attorney for the government to “make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court.” The Memorandum of Understanding in this case reveals that the government only moved to dismiss other charges and did not make a recommendation or agree not to oppose the defendant’s request for a particular sentence. The Memorandum of Understanding did specify “that the amount of cocaine base" }, { "docid": "14447258", "title": "", "text": "was incorrect. The record confirms that the district court did not make the findings required by Bruchey before imposing the order of restitution in this case. So, in light of the government’s concession, we vacate the restitution order and remand so that the district court may make the necessary findings and again order restitution in an amount it deems appropriate. Accordingly, the judgment of the district court is AFFIRMED IN PART AND VACATED AND REMANDED IN PART. . The record is unclear as to why the EPA's payment to CESI was $551 less than the amount claimed in CESI's fraudulent voucher. Also unclear is why the presentence report suggests that restitution be made in the amount of $52,567.26 rather than the $52,016.26 that EPA actually paid, and why the district court adopted the ' higher figure. We discuss Ewing's claims regarding the restitution order at part III, infra. . There is no reason apparent to us that the district court could not have deferred acceptance of the guilty plea as well as the plea agreement until consideration of the presentence report, but this was not what was done, and we review the facts which did occur rather than those which might have. See Fed.R.Crim.P. 32(c)(1); 3 C. Wright, Federal Practice and Procedure: Criminal 2d 522 (1982). . Rule 11(e)(1) actually sets out three types of promises that the government may make in exchange for a plea of guilty. However, because there are only two types of agreement for purposes of determining when a defendant may withdraw his plea of guilty, we shall speak in terms of two types of plea agreement. See generally United States v. Jackson, 563 F.2d 1145, 1147 & n. 4 (4th Cir.1977); 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 175.1 (1982). .Whether the same rule would apply to a guilty plea entered but not accepted is not a question before us. . Ewing argues that United States v. Livingston, 941 F.2d 431, 436 (6th Cir.1991), is authority for his position that pleas of guilty are not effective and binding until the district court" }, { "docid": "23525160", "title": "", "text": "the indictment in his case. Moreover, the court’s opinion does not describe or discuss the indictment so as to give us a basis for comparison. In sum, Ms. Reasor showed that the factual basis was insufficient as to an essential element of the crime charged. Chappell, Wade and Jackson were unable to demonstrate insufficiency of evidence as to any essential element of the crime charged in their indictments. The authorities cited by the government do not conflict with the circuit precedents upon which we have relied and give us no reason to abandon our analysis or our disposition. For these reasons we reject all of the Government’s arguments on this point as being without merit. II. Denial of Motion to Withdraw Pleas of Guilty Ms. Reasor seeks reversal of all of her convictions, alleging that her guilty pleas were not voluntary, as they were coerced by the trial judge, and that they were obtained in violation of Federal Rule of Criminal Procedure 11. A plea must be voluntary and intelligent to be valid. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Furthermore, Federal Rule of Criminal Procedure 11(c)(1) prohibits the court from “partie-ipat[ing] in any discussions between the parties concerning any such plea agreement.” United States v. Rodriguez, 197 F.3d 156, 158 (5th Cir.1999). This Court reviews the validity of guilty pleas de novo. United States v. Bustos-Useche, 273 F.3d 622, 625 (5th Cir.2001). However, by the express terms of the statute, Rule 11 violations are subject to harmless error analysis. Fed.R.Crim.P. 11(h); United States v. Miles, 10 F.3d 1135, 1140-41 (5th Cir. 1993). Ms. Reasor alleges that the trial court’s entry of sanctions against her for the cost of unnecessarily assembling a jury venire, refusal to accept a plea to anything but the entire indictment, and statement that if she were found guilty she would be taken into custody pending sentencing were coercive and an improper involvement of the trial court in the plea negotiation process. The government responds that this series of events occurred on the day the matter was scheduled to" }, { "docid": "23211307", "title": "", "text": "purported breach of the plea agreement. We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993). We affirm. A. When a defendant enters a plea of guilty and later seeks to withdraw it, the defendant bears the burden of demonstrating that withdrawal should be granted. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991). Calvin Dyess and Orange Dyess are making a post-sentencing challenge to their guilty pleas. In these situations, a district court only abuses its discretion in denying withdrawal if the underlying plea proceedings “were marred by a fundamental defect that inherently resulted in a complete miscarriage of justice, or in omissions inconsistent with rudimentary demands of fair procedure.” United States v. Ubakanma, 215 F.3d 421, 425 (4th Cir.2000). We review each of the defendants’ due process challenges in turn. 1. Calvin Dyess argues that his guilty plea violates due process because it was not knowing or voluntary. He claims that his attorney’s decision to allow him to enter into a plea agreement that included exposure to a life sentence amounts to ineffective assistance of counsel. Calvin Dyess also faults his attorney for not knowing about Hart and Miss Rader’s intimate relation and the degree to which it would affect the sentencing process. We agree with the district court that Calvin Dyess had the benefit of competent counsel at the time of the proceedings and that his plea was therefore knowing and voluntary. To justify a withdrawal of a guilty plea on the basis of ineffective assistance of counsel, a defendant must show 1) that his counsel’s actions fell below an objectively reasonable standard, and 2) that but for the attorney’s errors, it is reasonably probable that the defendant would have chosen to face trial rather than plead guilty. Ubakanma, 215 F.3d at 425; United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989). Calvin Dyess fails to meet this burden. Calvin Dyess cannot successfully claim that he was ineffectively represented solely because his attorney allowed him to" }, { "docid": "17863900", "title": "", "text": "Dieter, Jackson’s motion for reconsideration tolled the time for appeal. Rules governing the timing of appeals ensure that the district court and the court of appeals do not exercise jurisdiction over the same action at the same time. See United States v. Green, 847 F.2d 622, 624 (10th Cir.1988). By holding the notice of appeal in abeyance, we ensure that the district court retains jurisdiction until the judgment becomes truly final. Such a rule allows a district court to correct any alleged errors and also conserves judicial resources by ensuring that an appellate court does not hear an appeal that could be mooted by the district court’s reconsideration of its judgment. Thus, we hold that when Jackson’s motion to reconsider tolled the time for appeal, it also held the notice of appeal in abeyance. The notice of appeal became effective after the district court ruled on Jackson’s motion, and jurisdiction was established in this court. Therefore, we address the merits of Jackson’s appeal. THE MERITS Jackson raises six arguments on appeal. First, Jackson contends that the district court failed to comply with Rule 11(e)(2) of the Federal Rules of Criminal Procedure. Second, appellant argues that the district court’s refusal to be bound by the plea agreement rendered the plea of guilty involuntary. Third, Jackson contends that the district court did not comply with § 6Bl.l(b) of the Sentencing Guidelines when it failed to advise the defendant that the court is not bound by sentencing recommendations and that the defendant has no right to withdraw a guilty plea if the court decides not to accept plea recommendations. Fourth, appellant contends that he was denied due process when he was charged in federal rather than state court. Fifth, Jackson argues that the court’s actions resulted in an impermissible disparity in that Jackson was sentenced more severely than his codefendants. Finally, appellant asserts that the district court failed to comply with Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. We first address whether the district court failed to comply with Rule 11(e) of the Federal Rules of Criminal Procedure. Jackson contends that" }, { "docid": "6626896", "title": "", "text": "v. United States, 579 F.2d 1219, 1223 (10th Cir.1978), a district court may permit withdrawal of a plea prior to sentencing “upon a showing by the defendant of any fair and just reason.” Fed. R.Crim.P. 32(d). The defendant bears the burden of demonstrating a “fair and just reason.” United States v. Hickok, supra. We hold that Burger has failed to show a “fair and just reason” for withdrawing his plea. Contrary to Burger’s assertions that his plea should be vacated because of his allegation that his participation in the conspiracy terminated in December, 1988, the district court specifically found that “although defendant Burger agreed not to continue his involvement with Peoples Heritage,” he continued his “participation and ownership in the joint ventures, corporations, partnerships and property which was obtained with money illegally defrauded from Peoples ... [and his] participation continued unimpeded until the issuance of the Indictment.” (Appendix of Appellant, Vol. I at p. A0005253). Burger’s assertion that his plea should be vacated because he was misled as to which sentencing guideline would apply and the maximum sentence which he could receive is also without merit. A review of the April 23, 1991, plea hearing (Appellee’s Supplemental Appendix, pp. 38-74) and the August 1,1991, sentencing hearing (Appendix of Appellant, Vol. II, pp. [ AXXXXX-XXX ]) clearly establish that Burger “was informed of and comprehended both the nature and consequences of his plea.” United States v. Jackson, 950 F.2d 633, 637 (10th Cir.1991). Moreover, Burger’s imprisonment of twelve years was well below the maximum term of five years for each count, or twenty-five years. Similarly, Burger’s assertion that his guilty plea should be vacated because the government breached the plea bargain and asked for restitution and a substantial jail term is not supported by the record. This argument, predicated on Burger’s assertions that the FDIC and RTC were not victims but instead were part of the prosecution team, is specious. Under the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §§ 3579, 3580 (recodified at 18 U.S.C. §§ 3363, 3364), a sentencing court may order “ ‘a defendant convicted" }, { "docid": "23423042", "title": "", "text": "now faces the possibility of indefinite administrative detention following his release from prison. II. Discussion Gonzalez advances several arguments in his attempt to reverse the district court’s refusal to grant his Rule 32(e) motion. He also challenges the court’s failure to hold an evidentiary hearing prior to ruling on the motion. We address these arguments in turn. A. Motion to Withdraw Plea The heart of Gonzalez’s claim is that neither his attorneys nor the district judge advised him that if he pleaded guilty, he would be deemed “deportable” and subject to detention by the INS. He further complains that the district court failed to warn him of the possibility of restitution. Gonzalez contends that these deficiencies entitled him to withdraw his plea. We review the trial court’s refusal to grant a change of plea only for abuse of discretion, see, e.g., United States v. Raineri, 42 F.3d 36, 41 (1st Cir.1994); United States v. Austin, 948 F.2d 783, 787 (1st Cir.1991), and finding none, we affirm. Rule 32(e), states that “[i]f a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Fed.R.Crim.P. 32(e) (emphasis added). A defendant thus has no absolute right to withdraw a plea. See United States v. Muriel, 111 F.3d 975, 978 (1st Cir.1997); United States v. Isom, 85 F.3d 831, 834 (1st Cir.1996). A “fair and just reason” is a necessary, but not sufficient, predicate to plea withdrawal. See United States v. Doyle, 981 F.2d 591, 594 (1st Cir.1992) (“A defendant may withdraw a guilty plea pri- or to sentencing only upon a showing a fair and just reason for the request.”); see also Raineri, 42 F.3d at 41 (same). ■ Rule 32(e)' motions must be considered in the general context of Fed.R.Crim.P. 11 (“Rule 11”), which governs the entry of all guilty pleas. Rule 11(c) provides that: [b]efore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that" }, { "docid": "22682646", "title": "", "text": "any error in this case, it would not “seriously affect the fairness, integrity or public reputation of judicial proceedings.” There is no question as to Benton’s guilt, and the district court reviewed de novo all of Benton’s claims concerning his plea proceedings. Moreover, Benton himself consented to the magistrate judge presiding over his plea. Thus, Benton has not presented the sort of “exceptional circumstances” that would lead this court to overlook his failure to raise his objection before the district court. United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936). V. Benton next claims that his plea was not knowing and voluntary. Benton raised this claim with the district court before his sentencing, and the district court rejected it, finding that Benton had not presented a fair and just reason to withdraw his plea. We review the district court’s decision for abuse of discretion. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.2000). Rule 11(b)(1) of the Federal Rules of Criminal Procedure states that, for a court to accept a plea, it must inform the defendant of, inter• alia, “the nature of each charge to which the defendant is pleading” and “any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed.R.Crim.P. 11(b)(1)(G) & (H). Benton argues that the court in this case failed to meet both of these requirements. First, Benton claims that he was never made aware of the elements of the conspiracy charge to which he pled or “the concept of vicarious liability for drugs trafficked during the conspiracy.” Brief of Appellant at 20. Second, Benton contends that he was informed “that the maximum term of supervised release was five years,” despite the fact that Benton faced a mandatory minimum of ten years supervised release. Id. at 20-21. We find Benton’s arguments to be without merit. First, Benton was clearly informed of the nature of the conspiracy charge to which he pled. As Benton recognizes, this court’s decision in United States v. DeFusco, 949 F.2d 114 (4th Cir.1991), establishes the standard under which we evaluate a court’s" }, { "docid": "23211306", "title": "", "text": "(4th Cir.1998), this court addressed a defendant’s contention that his indictment should be dismissed on the basis of discovery violations by the government. Derrick, 163 F.3d at 803. We emphasized that “an indictment may not be dismissed for prosecutorial misconduct absent a showing that the misconduct prejudiced the defendant.” Derrick, 163 F.3d at 807. Furthermore, even when a court finds such prejudice, dismissal of the indictment does not necessarily follow as a remedy. Retrial, for example, may fully cure prejudice. Derrick, 163 F.3d at 809. See also Derrick, 163 F.3d at 807 (“The dismissal of an indictment altogether clearly thwarts the public’s interest in the enforcement of its criminal laws....”) We therefore affirm the district court’s denial of the defendants’ motion to dismiss with prejudice the indictment and information. VI. Defendants Calvin Dyess and Orange Dyess argue that the district court erred in denying a motion to withdraw their guilty pleas. Both defendants contend that their pleas were not knowing and voluntary, and Calvin Dyess claims that we should permit withdrawal based on the government’s purported breach of the plea agreement. We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993). We affirm. A. When a defendant enters a plea of guilty and later seeks to withdraw it, the defendant bears the burden of demonstrating that withdrawal should be granted. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991). Calvin Dyess and Orange Dyess are making a post-sentencing challenge to their guilty pleas. In these situations, a district court only abuses its discretion in denying withdrawal if the underlying plea proceedings “were marred by a fundamental defect that inherently resulted in a complete miscarriage of justice, or in omissions inconsistent with rudimentary demands of fair procedure.” United States v. Ubakanma, 215 F.3d 421, 425 (4th Cir.2000). We review each of the defendants’ due process challenges in turn. 1. Calvin Dyess argues that his guilty plea violates due process because it was not knowing or voluntary. He claims that his attorney’s" }, { "docid": "22630044", "title": "", "text": "Puckett, 61 F.3d 1092, 1099 (4th Cir.1995) (a “fair and just” reason is one that “essentially challenges” the fairness of a proceeding under Fed. R.Crim.P. 11). In determining whether a defendant has met his burden, courts consider multiple factors: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. See Moore, 931 F.2d at 248. On the first factor, the record reflects that the district court conducted a thorough and comprehensive Rule 11 hearing prior to accepting Ubakanma’s guilty plea. In that proceeding, Ubakanma acknowledged under oath that the factual stipulations underlying his plea (and read into the record in open court) were true. He stated, among other things, that no one had coerced Mm into pleading guilty and that he was in fact guilty of the wire fraud offense. Ubakanma was advised of the essential terms of the plea agreement, and he asserted under oath that he understood them. The court reviewed the maximum permissible sentence on the wire fraud conviction, and Ubakanma acknowledged that he understood. The court also advised Ubakanma of the constitutional rights being waived by his guilty plea, and he again indicated his understanding. In these circumstances, Ubakanma’s conclu-sory post-plea assertions that his plea was not knowing and voluntary, made in his unsworn letter to the court, fail to overcome the barrier of the sworn statements made at his Rule 11 hearing. We therefore agree with the district court in weighing this factor in favor of the Government. As to the second factor, Ubakanma con-clusorily asserts his legal innocence. In light of his contrary statements diming the Rule 11 proceeding, we also agree with the district court that this factor weighs strongly in favor of the Government. As to the" }, { "docid": "1502450", "title": "", "text": "in statutes, is given a compulsory meaning). The sentencing court may invoke the enhancement sua sponte without a request by the government. United States v. Towne, 680 F.Supp. 687, 689-90 (D.Vt.1988), aff'd in part, reversed in part on other grounds, 870 F.2d 880 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989). United States v. Jackson, 921 F.2d 985 (10th Cir.1990) (en banc), relied upon by defendant, is not controlling authority to the contrary. In Jackson the government, in the plea agreement, specifically agreed not to seek enhancement under § 924(e)(1). This court did not there consider whether the district court could properly decline to impose the penalties in § 924(e)(1); the only issue before the court was whether the district court’s degree of upward departure from the sentencing guidelines range was reasonable. The district court acted properly in allowing defendant to withdraw his guilty plea because the plea petition inaccurately indicated a ten year maximum sentence and initially was made under a false assumption. See United States v. McCann, 940 F.2d 1352, 1358 (10th Cir.1991). In United States v. Colunga, 786 F.2d 655 (5th Cir.1986), the court discussed a similar situation and stated: Misinformation regarding the maximum sentence which causes a defendant to believe that the penalty is less than the actual possible sentence serves as a basis for withdrawal of a guilty plea. Thus, [defendant] should be given the opportunity to plead anew with correct information regarding the maximum possible punishment. Should [defendant] persist in his original desire to plead guilty, we see no legal barrier to sentencing [him] to a more severe sentence. Id. at 658. Defendant’s affirmation of the guilty plea following the court’s disclosure that the enhancement and the statutory minimum of fifteen years would apply was voluntary. The district court, even after accepting the guilty plea but before sentencing, appropriately could correct an error of law in the plea petition; it was not required to adhere to an incorrect statutory maximum sentence. See United States v. Richardson, 901 F.2d 867, 869 (10th Cir.1990) (in response to information in presentence" } ]

[ { "docid": "21980559", "title": "", "text": "accomplished restraints of trade, the bare bones allegation that the designation of a second dealership on Oahu had caused “damages resulting from loss of goodwill, loss of past profits, loss of future profits, and diminution in the value of its business and property”, was sufficient to state a cause of action under Sherman 1. As was pointed out by the defendants, competition in the Pontiac market would not be decreased by the appointment, but rather increased— normally a desirable objective under the antitrust laws. Although it was argued by plaintiffs, nowhere was there any allegation — even if one could be made— that the Island of Oahu could not successfully support two viable Pontiac dealers. The court could take judicial notice of the fact that the population of Oahu in 1939 when Kapiolani Motors was started was about 250,000, and in 1968 was about 650,000. Plaintiffs base their argument on three cases: Poller v. Columbia Broadcasting, 368 U.S. 464, 82 S.Ct. 486, 7 L. Ed.2d 458 (1962); Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed. 2d 998 (1968); and Mt. Lebanon, supra, n. 2. In Poller, station WCAN, a UHF TV station in Milwaukee, was affiliated with the CBS network. CBS purchased WOKY, a competing UHF station in Milwaukee, and cancelled WCAN’s network affiliation, thereby forcing the plaintiff to sell WCAN to CBS at a forced sale. Plaintiff’s allegation was that this was done pursuant to a conspiracy to restrain and monopolize trade in the TV broadcasting business in the Milwaukee area. The Court said: “It may be that CBS by independent action could have exercised its granted right to cancel WCAN’s affiliation * * * and independently purchased its own outlet in Milwaukee.” (Emphasis added.) 368 U.S. at 468, 82 S.Ct. at 488. Then continued: “However, if such a cancellation and purchase were part and parcel of unlawful conduct or agreement with others or were conceived in a purpose to unreasonably restrain trade, control a market, or monopolize, then such conduct might well run afoul of the Sherman Law.” 386 U.S. at 468-469, 82 S.Ct." } ]

[ { "docid": "18849606", "title": "", "text": "to deal with anyone other than Fox, which they contend violated various federal and State laws. The Sherman Act Claims Section 1 Claims Although it is not altogether clear, the thrust of plaintiffs’ antitrust claims appears to be that G.M. entered into an agreement with Fox in which Fox would be assured of obtaining the Bethpage Oldsmobile dealership at a favorable price — since G.M. would apparently approve no one else — in return for his acquiescence in the establishment of Dale Oldsmobile in the Bronx. This, it is asserted, deprived Fallon of the ability to sell its assets at a price above their cost and thereby made “the buyer [Fox] the monopolist in regard to the price he will pay while at the same time ousting potential buyers from entering the market.” (Plaintiffs’ Memorandum at 10-11.) Thus, plaintiffs appear to argue that there is a market for the sale of Oldsmobile franchises, or at least a market for the sale of Oldsmobile automobiles, that is restrained in violation of the antitrust laws by defendants’ conduct. Under the facts presented, it is apparent that while defendants’ conduct most certainly affected plaintiffs, it did not affect competition within the meaning of the antitrust laws since the “purpose of the Sherman Act is to protect competition, not competitors.” Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876, 885 (S.D.N.Y.1968), aff’d, 405 F.2d 319 (2 Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 77 (1969). This leads us to the same conclusion this court reached in Diehl & Sons, Inc. v. International Harvester Co., 426 F.Supp. 110 (E.D.N.Y.1976): even assuming defendants conspired to eliminate Fallon and replace it with Fox at Bethpage, such conduct is without antitrust significance. See also Aladdin Oil Co. v. Texaco, supra, 603 F.2d 1107 (5 Cir. 1979); Fuchs Sugar & Syrup, Inc. v. Amstar Corp., 602 F.2d 1025, 1030 (2 Cir. 1979); Golden Gate Accept. Corp. v. General Motors Corp., 597 F.2d 676, 678 (9 Cir. 1979); Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 133 (2 Cir.) (en banc), cert. denied, 439 U.S. 946," }, { "docid": "22244239", "title": "", "text": "a sufficient allegation of effect on interstate commerce to state a cause of action under the Sherman and Clayton Acts. Compare Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974) (intrastate sales of asphaltic concrete for use on interstate highways are not sales “in commerce” under Clayton Act; no evidence of effects on interstate commerce). The complaint further alleges that appellees bought up appellants’ source of grit and gravel supplies as part of a continuing effort to monopolize the local ready-mixed concrete industry and that, by controlling the best source of supply, the appellees were in a position to force appellants out of business with a cost-price squeeze. The complaint further indicated that the markets involved were those for gravel and ready-mixed concrete in the Buffalo or Western New York area. Taken together, these allegations were adequate to put the appellees on notice as to the nature of appellants’ claim. Appellees dispute these allegations, but where there is a dispute as to material facts judgment on the pleadings is inappropriate, 5 C. Wright & A. Miller, Federal Practice and Procedure § 1367, at 685 (1969). Even though appellants’ claims were alleged with what would ordinarily be considered sufficient specificity, appellees contend, and the court below appeared to believe, that antitrust claims, because of their complexity, must be pleaded with greater specificity than other claims. It has been clear in this circuit since Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir. 1957) (Clark, C. J.), however, that a short plain statement of a claim for relief which gives notice to the opposing party is all that is necessary in antitrust cases, as in other cases under the Federal Rules. See 5 C. Wright & A. Miller, supra, § 1228. Compare, e. g., Newburger, Loeb & Co. v. Gross, 365 F.Supp. 1364, 1367-68 (S.D.N.Y.1973) (“skeletal” allegations sufficient), with, e. g., Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972) (“a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits" }, { "docid": "18849616", "title": "", "text": "conduct in refusing to franchise an inn within a certain distance of objecting, and would-be competing franchises. Plaintiffs also argue that the sale of Oldsmobiles constitutes a relevant market. This court had occasion to treat this very issue in Diehl & Sons, Inc. v. International Harvester Co., supra. No compelling reason to depart from the conclusion reached in that case has been demonstrated. In Diehl, we declined to follow the lower court decisions in the Third Circuit that stand broadly for the proposition that notwithstanding an automobile manufacturer’s natural monopoly over its own products, it may violate section 2 if it employs predatory practices in an attempt to monopolize the retail market in its own product. We determined that the rationale supporting this proposition was flawed inasmuch as it clearly seeks to protect the competitor and not competition as intended by the antitrust laws. 426 F.Supp. at 121. Since product competition turns on the reasonable interchangeability of available goods considering price, use and quality, United States v. E.I. du Pont de Nemours & Co., supra, 351 U.S. at 380, 76 S.Ct. 994, the existence of reasonably interchangeable automobiles precludes any finding that competition has been restrained in any material manner. See Merit Motors, Inc. v. Chrysler Corp., 417 F.Supp. 263, 269 (D.D.C.1976), aff’d on other grounds, 187 U.S.App.D.C. 11, 569 F.2d 666 (D.C.Cir.1977); Mogul v. General Motors Corp., 391 F.Supp. 1305, 1313 (E.D.Pa.1975), aff’d, 527 F.2d 645 (3 Cir. 1976). Finally, although plaintiffs argue that the law is unsettled with respect to the requirement that a relevant market be demonstrated in an action asserting an attempt to monopolize in violation of section 2, this is hardly true. See, e. g., Kreager v. General Electric Co., supra, 497 F.2d at 471; Diehl & Sons, Inc. v. International Harvester Co., supra, 426 F.Supp. at 120-21. Accordingly, defendants’ motion for summary judgment dismissing the federal antitrust claims is granted. Dealer-Day-In-Court Act Claim Fallon’s fifth cause of action alleges defendants’ conduct violated provisions of the DDICA, which protects automobile dealers against manufacturers’ failures to “act in good faith in performing or complying with any" }, { "docid": "23065499", "title": "", "text": "a cause of action. Although detail is unnecessary, the plaintiffs must plead the facts constituting the conspiracy, its object and accomplishment. The plaintiffs have pleaded none of these facts. Neither the date of the alleged conspiracy nor its attendant circumstances are set forth. Nor is it averred who made the statements, where, when, or to whom. This principle was recently reiterated by the Second Circuit in Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972), in which the court dismissed plaintiff’s complaint without leave to amend. Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal. See generally, 2A Moore, Federal Practice j[ 12.08 (2d ed. 1968). This is particularly true, when, as here, the original plaintiff has already amended his complaint once with the approval of the court. See also Jacobs v. Tenney, 316 F.Supp. 151, 163-165 (D.Del.1970) (conspiracy to violate the securities laws); Eisman v. Pan American World Airlines, 336 F.Supp. 543, 553 (E.D.Pa.1971) (conspiracy to violate civil rights under 42 U.S.C. Section 1985); and Drusky v. Judges of the Supreme Court, 324 F.Supp. 332 (W.D.Pa.1971) (conspiracy to violate civil rights under 42 U.S.C. Section 1985). The plaintiff’s amended complaint herein simply contains a general allegation of conspiracy without any statement of facts to support this legal conclusion. This is a fatal defect which requires dismissal of the conspiracy allegation and which underscores the invalidity and specious nature of plaintiff’s argument that the amended complaint adequately alleges a violation of the antitrust laws. Furthermore, the statutes allegedly violated by the defendants do not provide a cause of action for conspiracy. Therefore, even if conspiracy was properly pleaded, such an averment would not alter the plaintiff’s lack of standing to sue. Secondly, the plaintiff’s contention that his reference to 28 U.S.C.A. Section 1337, “under principles of notice pleading,” when taken together with his sweeping allegation of conspiracy, also fails to constitute a sufficient pleading of any antitrust violations. The plaintiff invokes this Court’s jurisdiction by" }, { "docid": "10672817", "title": "", "text": "fact, and the public believes there is, intense competition in the league framework between the teams operated by the N.B.A. members. In any event plaintiffs, rejected, sold their rights in the Celtics elsewhere and commenced this action. In order to survive defendants’ motion for summary judgment, plaintiffs must demonstrate that the conduct complained of is a violation of the antitrust laws. While it is true that the antitrust .laws apply to a professional athletic league, and that joint action by members of a league can have antitrust implications this is not such a case. Here the plaintiffs wanted to join with those unwilling ' to accept them, not to compete with them, but to be partners in the operation of a sports league for plaintiffs’ profit. Further, no matter which reason one credits for the rejection, it was not an anti-competitive reason. ‘ Finally, regardless of the financial impact of this rejection upon the plaintiffs, if any, the exclusion of the plaintiffs from membership in the league did not have an anti-competitive effect nor an effect upon the public interest. The Celtics continue as an operating club, and indeed are this year’s champion. The law is well established that it is competition, and not individual competitors, that is protected by the antitrust laws. Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876 (S.D.N.Y.1968) aff’d, 405 F.2d 319 (2d Cir.), cert, denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). It is also clear that where the action the plaintiffs attack, the rejection from co-partnership, has neither anti-competitive intent nor effect, that conduct is not violative of the antitrust laws. Bay City-Abrahams Bros. Inc. v. Estee Lauder Inc., 375 F.Supp. 1206 (S.D.N.Y.1974). While summary judgment should be sparingly granted in antitrust litigation, Poller v. Columbia Broadcasting System Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), nevertheless, the mere filing of an antitrust complaint does not entitle the plaintiff to a full-dress trial in the absence of “significant probative evidence tending to support the complaint.” First National Bank v. Cities Service Corp., 391 U.S. 253, 290, 88" }, { "docid": "15392264", "title": "", "text": "only give notice to the opposing party by a short plain statement for relief, in antitrust cases as in all cases under the Federal Rules. George C. Frey Ready-Mixed Con. v. Pine Hill C.M., 554 F.2d 551, 554 (2 Cir. 1977). See Nagler v. Admiral Corporation, 248 F.2d 319 (2 Cir. 1957). Thus, it is unnecessary to plead evidence or the facts upon which the claims are based. Bogosian v. Gulf Oil Corp., supra at 446. Rather, dismissal is appropriate only when, after the court has taken all well-pleaded material facts as true, it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2 Cir. 1974). In antitrust cases, moreover, in which the proof is often in the control of the alleged conspirators, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), dismissal prior to ample opportunity for discovery should be sparingly granted. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). See Athletes Foot of Delaware v. Ralph Libonati Co., 445 F.Supp. 35, 50 (D.Del.1977). While “bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal,” Heart Research Foundation v. General Motors Corp., 463 F.2d 98,100 (2 Cir. 1972); Car-Freshner Corp. v. Auto Aid Mfg. Corp., 438 F.Supp. 82, 86 (N.D.N.Y.1977), this complaint hardly merits such summary treatment. Discovery and other pre-trial procedure, see Rule 16, F.R.Civ.P., will provide whatever sharpening of the issues may be necessary. George C. Frey Ready-Mix Con. v. Pine Hill C.M., supra at 554. Finally, it should be noted that defendants only weakly contend the complaint is deficient under Rule 8(a), F.R. Civ.P. They do not assert, however, that the complaint fails to give them adequate notice of the contours of plaintiff’s claims. Jurisdiction in this action is alleged to" }, { "docid": "6408749", "title": "", "text": "is to protect competition, not competitors.” Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876, 885 (S.N.D.Y.1968), aff’d, 405 F.2d 319 (2 Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). Thus, even assuming that some conspiracy did exist between Harvester and someone else to eliminate Diehl and TRAC as retailers of Harvester products, such conduct is without antitrust significance. No antitrust objective would be served by holding that a manufacturer cannot terminate its independent distributors and replace them with its own distribution system, absent a showing that the termination was designed to further some collateral prohibited activity, such as, enforcing a tying arrangement, eliminating price-cutters, or creating or strengthening a monopoly position, see Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9 Cir. 1972); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283, 287 (6 Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963), none of which are even arguably present here. Finally, it is undisputed that there are other sources of supply available to Diehl and in fact Diehl does already sell Mercedes-Benz products and has contracted for a Volvo dealership. The Monopoly Claims The theory of plaintiffs’ § 2 claims is that Harvester, through its sales branches, is attempting to monopolize truck sales and leases in the New York area. In order to sustain such a charge, Harvester contends that Diehl must prove (1) a specific intent to monopolize, (2) an overt act or acts, and (3) a dangerous probability of monopolization of a specific product market in a particular geographic market. Morning Pioneer, Inc. v. The Bismarck Tribune Co., 493 F.2d 383, 386 (8 Cir. 1974); Kreager v. General Electric Company, 497 F.2d 468, 471 (2 Cir. 1974); see also American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Harvester’s summary judgment motion is predicated on the largely uncontroverted facts contained in the affidavits of James R. Fruchterman and John B. Frederick, both Harvester employees. Based on personal knowledge and Harvester’s business records, Fruchterman states that Harvester had five" }, { "docid": "18849608", "title": "", "text": "99 S.Ct. 340, 58 L.Ed.2d 338 (1978); Marquis v. Chrysler Corp., 577 F.2d 624, 640 (9 Cir. 1978); Fray Chevrolet Sales, Inc. v. General Motors Corp., 536 F.2d 683, 686 (6 Cir. 1976); Diehl & Sons, Inc. v. International Harvester Co., supra, 426 F.Supp. at 119. “It is settled law that a manufacturer has the right to select its customers and to refuse to sell its goods to anyone for reasons sufficient to itself. ... A refusal to deal becomes illegal under the Sherman Act only when it produces an unreasonable restraint of trade, such as price-fixing, elimination of competition, or creation of monopoly. ... A mere unilateral change of distributors is not an unusual business practice, nor is it a violation of the antitrust laws.” Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245, 1248 (5 Cir. 1975) (citations omitted). Under this line of authority, plaintiffs must show that defendants’ conduct was designed to further some collateral activity prohibited by the antitrust laws, such as collaboration to maintain control of prices. They argue that because Fallon could not sell his dealership to the highest bidder, because McDaniel was foreclosed from competing for the Bethpage franchise, and because McDaniel was unable to compete with other Oldsmobile dealers since he was not appointed by defendants, the defendants have committed a restraint of trade in violation of the antitrust laws (Plaintiffs’ Memorandum at 19(A)). These are hardly the sort of restraints proscribed by the antitrust laws. Rather, they are merely the result of defendants’ apparently lawful decision to terminate Fallon and replace it with Fox rather than McDaniel or any other applicant as a part of their own marketing strategy. Since defendants’ conduct does not run afoul of the antitrust laws, it is inconceivable that adverse effects on plaintiffs of that conduct should violate these laws without some evidence competition has been adversely affected. The court declines to hold that it does. The authority relied upon by plaintiffs, Lebanon Motors, Inc. v. Chrysler Corp., 283 F.Supp. 453 (W.D.Pa.1968); Rea v. Ford Motor Co., 355 F.Supp. 842 (W.D.Pa.1973), rev’d, 497 F.2d 577 (3" }, { "docid": "6408748", "title": "", "text": "plaintiffs’ own theory of the case, i. e., that Harvester is trying, to increase sales by its own sales branches, there is not, nor could there logically be, any joint action of the type proscribed by § 1. Harvester’s actions, assuming plaintiffs’ charges to be true, are simply the result of an independent business decision which is not actionable under the antitrust laws. Restraint of Trade As a separate ground for dismissing plaintiffs’ § 1 claim, defendants maintain that there is no restraint of trade, let alone an unreasonable one, arising out of the elimination of the Diehl distributorship. As discussed more fully under the monopoly claim, there is no contention in this case that Harvester trucks are not reasonably interchangeable with those of other, larger manufacturers, e. g., Ford, Chevrolet, Dodge and GMC. Moreover, there are 23 other Harvester distributors in the New York metropolitan area. Under these circumstances, the termination of Diehl as a Harvester distributor affected only Diehl, not competition. As it has oft been said: “[T]he purpose of the Sherman Act is to protect competition, not competitors.” Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876, 885 (S.N.D.Y.1968), aff’d, 405 F.2d 319 (2 Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). Thus, even assuming that some conspiracy did exist between Harvester and someone else to eliminate Diehl and TRAC as retailers of Harvester products, such conduct is without antitrust significance. No antitrust objective would be served by holding that a manufacturer cannot terminate its independent distributors and replace them with its own distribution system, absent a showing that the termination was designed to further some collateral prohibited activity, such as, enforcing a tying arrangement, eliminating price-cutters, or creating or strengthening a monopoly position, see Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9 Cir. 1972); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283, 287 (6 Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963), none of which are even arguably present here. Finally, it is undisputed that there are other sources of supply available to" }, { "docid": "10473993", "title": "", "text": "facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal.” Heart Disease Research Found. v. General Motors Corp., 463 F.2d 98, 100 (2d Cir.1972). A generous reading of Medtronic’s pleading indicates that the “anticompetitive” concerted action Telectronics allegedly engaged in was a conspiracy to violate the Medicare laws. Answer ¶¶ 63, 89. This allegation by itself is insufficient to state a claim under section 1 of the Sherman Act. “The cornerstone of [antitrust] law is competition. Congresses] intent in passing the Sherman Act was not to subject all business and commercial torts to the scrutiny of federal [antitrust] law.” Falstaff Brewing Co. v. Stroh Brewery Co., 628 F.Supp. 822, 826 (N.D.Cal.1986). Moreover, Medtronic has failed to plead antitrust injury, another necessary element of an antitrust claim. Thus this claim must be dismissed under Rule 12(b)(6). Section Two There are three types of civil actions which may be brought under section 2 of the Sherman Act, 15 U.S.C. § 2 (1982): (1) monopolization; (2) attempted monopolization; and (3) conspiring to monopolize. Medtronic appears to be trying to assert each of these claims. Monopolization To state properly a monopolization claim under section 2, the claimant must allege (1) that defendant has monopoly power — the ability to control prices or exclude competition; and (2) that defendant acquired its monopoly power through conduct intended to obtain such power. Section 2 of the Sherman Act is “aimed ... at the acquisition or retention of effective market control.” United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). It is designed to prevent “a pernicious market structure in which the concentration of power saps the salubrious influence of competition.” Berkey Photo, 603 F.2d at 272. Ordinarily, the court may infer the existence of monopoly power from a predominant share of the relevant market. Grinnell, 384 U.S. at 571, 86 S.Ct. at 1704. Here, although it did offer definitions of the relevant product and geographic markets and submarkets, Medtronic has alleged neither monopoly power, nor even significant market share on" }, { "docid": "23065498", "title": "", "text": "the plaintiff attempts to pass off this single conelusory remark as support for his contentions that he has pleaded not only “conspiracy” but a violation of the federal antitrust laws. Such a contention is unsupportable for two reasons. First, it has long been the rule in the Third Circuit that general conspiracy assertions, without supporting allegations of fact, are insufficient as a matter of law. In Black and Yates v. Mahogany Association, 129 F. 2d 227, 231-232 (3rd Cir. 1941) cert. denied, 317 U.S. 672, 63 S.Ct. 76, 87 L.Ed. 539 (1942), the Circuit Court held in connection with allegations of conspiracy under the antitrust laws: The views just expressed make it unnecessary for us to elaborate upon plaintiffs’ failure to state a cause of action under the Sherman or Clayton Acts. . . . The vital allegations in such an action are similar to those in any civil conspiracy case. A general allegation of conspiracy without a statement of the facts is an allegation of a legal conclusion and insufficient of itself to constitute a cause of action. Although detail is unnecessary, the plaintiffs must plead the facts constituting the conspiracy, its object and accomplishment. The plaintiffs have pleaded none of these facts. Neither the date of the alleged conspiracy nor its attendant circumstances are set forth. Nor is it averred who made the statements, where, when, or to whom. This principle was recently reiterated by the Second Circuit in Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972), in which the court dismissed plaintiff’s complaint without leave to amend. Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal. See generally, 2A Moore, Federal Practice j[ 12.08 (2d ed. 1968). This is particularly true, when, as here, the original plaintiff has already amended his complaint once with the approval of the court. See also Jacobs v. Tenney, 316 F.Supp. 151, 163-165 (D.Del.1970) (conspiracy to violate the securities laws); Eisman v. Pan American World Airlines," }, { "docid": "16580672", "title": "", "text": "have been illegal under Pennsylvania law, they were not illegal under the antitrust laws.” 463 F.2d at 476. See also Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). . In Pennington, a coalition of mine operators and a miners’ union successfully persuaded the Secretary of Labor to establish higher minimum wages for employees of smaller coal companies, in an effort to reduce competition in the industry. The Court held that this kind of activity was not subject to the Sherman Act regardless of whether the association had purposefully conducted its activities to cause an anti-competitive effect. . We note that certain defendants have filed a counterclaim in this case alleging that plaintiffs have engaged in sham litigation, thus invoking the theory of antitrust liability recognized in California Motor Transport Co., supra, and in Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). . In the Sound Ship case quoted in Van Dyk, the Third Circuit affirmed the grant of summary judgment against a Sherman Act plaintiff solely because plaintiff failed to bring forward any evidence to support its allegation of a causal link between the alleged antitrust violation and its alleged damages. 533 F.2d at 98-100. . In Van Dyk, supra, the Court of Appeals did not use the term “standing,” but rather spoke in terms of “causation” or “fact of injury.” Nor did the Supreme Court in Brunswick, supra, which spoke in terms of “antitrust injury.” Traditionally, however, proof of causal nexus between an alleged antitrust violation and injury resulting therefrom has been considered an aspect of plaintiffs standing under § 4. See 2 P. Areeda & D. Turner, Antitrust Law ¶¶ 334-35 (1978). Many courts do use “standing” terminology. See, e. g., Bowen v. New York News, Inc., 522 F.2d 1242 (2d Cir. 1975), cert, denied, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976). It is of course true, as the Third Circuit has noted, that statutory antitrust standing is analytically distinct from" }, { "docid": "10473996", "title": "", "text": "a necessary element of the claim. Conspiracy to Monopolize To state a claim for conspiracy to monopolize, a claimant must allege (1) concerted action; (2) specific intent to achieve the unlawful result of monopoly; and (3) the commission of at least one act in furtherance of the conspiracy. “It need not be shown that monopoly power has been attained, nor that if the conspirators continued in their course unmolested they would have attained it, but only that obtaining such power is the purpose which motivates the conspiracy.” L. Sullivan, supra, § 49, at 132-33. Medtronic’s only allegations of concerted action state that Te lectronics “and others have combined and conspired and acted individually to bribe physicians to use Telectronics’ products and to exclude competition in the relevant markets and submarkets.” Answer ¶¶ 88-89. “Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal.” Heart Disease Research, 463 F.2d at 100. Medtronic has not named the “others” who allegedly conspired with Telectronics U.S.A. and Telectronics, Inc. and these two entities cannot conspire with each other. “[T]he joint activities of a parent company and its wholly owned subsidiary cannot constitute a combination or conspiracy in violation of ... the Sherman Act.” Shaw v. Rolex Watch, U.S.A., Inc., 673 F.Supp. 674, 677, 1987-2 Trade Cas. (CCH) ¶ 67,787, at 59,238, 59,240 (S.D.N.Y.1987) (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 776, 104 S.Ct. 2731, 2744, 81 L.Ed.2d 628 (1984)). Because Medtronic has failed to state adequately any claim under sections one and two of the Sherman Act, Telectronics’ motion to dismiss defendant’s first counterclaim pursuant to Rule 12(b)(6) is granted. Despite the fact that Medtronic was aware of a defect in its pleading, and did nothing to correct it for over one year, defendant may file an amended pleading within 20 days as this Court is disinclined to preclude a party’s opportunity to prosecute a potentially legitimate claim merely because of its counsel’s neglect or omission. B. Medtronic’s RICO Claim As its third" }, { "docid": "4063637", "title": "", "text": "done so in furtherance of a scheme to maintain prices at an artificially high level. Other eases cited by the defendants are similarly inapposite to the case at hand. See, e.g., Speed Auto Sales, Inc. v. American Motors Corp., 477 F.Supp. 1193, 1196 (E.D.N.Y.1979) (dismissal of claim based on failure to allege conspiracy, exclusive dealership, or injury); Neugebauer v. A.S. Abell Co., 474 F.Supp. 1053, 1067-69 (D.Md.1979) (failure to prove injury at the trial, not a case involving summary disposition); Diehl & Sons, Inc. v. International Harvester Co., 426 F.Supp. 110, 119 (E.D.N.Y.1976) (summary judgment granted defendant, after completion of exhaustive discovery by both parties, where no more was shown than that one of twenty-four dealers in the geographic market was terminated by the manufacturer). In conclusion, the defendants have failed to demonstrate that Martin cannot prove a violation of section 1 of the Sherman Act. Although the complaint is not as clear as it could be and the task the plaintiff has set for itself, if it is to prove what it alleges, may in the end prove too difficult for it to succeed, it is not for this Court at this time to go beyond the bare essentials of the pleadings and other submissions to decide whether the plaintiff has in fact, proven what it has alleged. The defendants’ motions with respect to Martin’s section 1 claims, therefore, are denied. C. Claims of Conspiracy and Attempt to Monopolize Trade Martin claims that either Chipwich by itself or Chipwich and Premium in concert attempted to monopolize the distribution of C-wiches in the New York Metropolitan area, thereby violating section 2 of the Sherman Act, 15 U.S.C. § 2 (1976). In response, Chipwich and Premium argue that they could not possibly have monopolized the relevant product market, which they contend is comprised of either all ice cream novelties, at its broadest, or all ice cream sandwiches, at its narrowest. They suggest that the Court take judicial notice of the fact that the market is as they define it and dismiss the two section 2 claims. In addition, they argue that" }, { "docid": "18849607", "title": "", "text": "conduct. Under the facts presented, it is apparent that while defendants’ conduct most certainly affected plaintiffs, it did not affect competition within the meaning of the antitrust laws since the “purpose of the Sherman Act is to protect competition, not competitors.” Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876, 885 (S.D.N.Y.1968), aff’d, 405 F.2d 319 (2 Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 77 (1969). This leads us to the same conclusion this court reached in Diehl & Sons, Inc. v. International Harvester Co., 426 F.Supp. 110 (E.D.N.Y.1976): even assuming defendants conspired to eliminate Fallon and replace it with Fox at Bethpage, such conduct is without antitrust significance. See also Aladdin Oil Co. v. Texaco, supra, 603 F.2d 1107 (5 Cir. 1979); Fuchs Sugar & Syrup, Inc. v. Amstar Corp., 602 F.2d 1025, 1030 (2 Cir. 1979); Golden Gate Accept. Corp. v. General Motors Corp., 597 F.2d 676, 678 (9 Cir. 1979); Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 133 (2 Cir.) (en banc), cert. denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978); Marquis v. Chrysler Corp., 577 F.2d 624, 640 (9 Cir. 1978); Fray Chevrolet Sales, Inc. v. General Motors Corp., 536 F.2d 683, 686 (6 Cir. 1976); Diehl & Sons, Inc. v. International Harvester Co., supra, 426 F.Supp. at 119. “It is settled law that a manufacturer has the right to select its customers and to refuse to sell its goods to anyone for reasons sufficient to itself. ... A refusal to deal becomes illegal under the Sherman Act only when it produces an unreasonable restraint of trade, such as price-fixing, elimination of competition, or creation of monopoly. ... A mere unilateral change of distributors is not an unusual business practice, nor is it a violation of the antitrust laws.” Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245, 1248 (5 Cir. 1975) (citations omitted). Under this line of authority, plaintiffs must show that defendants’ conduct was designed to further some collateral activity prohibited by the antitrust laws, such as collaboration to maintain control of prices. They argue that" }, { "docid": "10473995", "title": "", "text": "Telectronics’ part. Instead, it simply avers that: “[t]he Telectronics[ ] entities have monopolized and continue to monopolize” the relevant markets. Answer U 88. Such a statement is not a sufficient allegation of monopoly power to withstand a motion to dismiss. “A complaint cannot escape the charge that it is entirely conclusory in nature merely by quoting ... words from the statutes.” Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972). Attempted Monopolization “The essential elements of attempted monopolization under [section 2] are (1) a dangerous probability of success in monopolizing a given product market and (2) a specific intent to destroy competition or control prices in the market.” Levitch v. Columbia Broadcasting Sys., 495 F.Supp. 649, 668 (S.D.N.Y.1980), aff'd, 697 F.2d 495 (2d Cir.1983). Medtronic seems to have alleged specific intent when it said: “Telectronics, Inc. and Telectronics U.S.A., Inc. have had, as their sole purpose, the suppression and elimination of competition.” Answer ¶ 86. However, the counterclaim does not contain any allegations of a dangerous probability of success, and thus has failed to state a necessary element of the claim. Conspiracy to Monopolize To state a claim for conspiracy to monopolize, a claimant must allege (1) concerted action; (2) specific intent to achieve the unlawful result of monopoly; and (3) the commission of at least one act in furtherance of the conspiracy. “It need not be shown that monopoly power has been attained, nor that if the conspirators continued in their course unmolested they would have attained it, but only that obtaining such power is the purpose which motivates the conspiracy.” L. Sullivan, supra, § 49, at 132-33. Medtronic’s only allegations of concerted action state that Te lectronics “and others have combined and conspired and acted individually to bribe physicians to use Telectronics’ products and to exclude competition in the relevant markets and submarkets.” Answer ¶¶ 88-89. “Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal.” Heart Disease Research, 463 F.2d at 100. Medtronic has not named the “others” who" }, { "docid": "10672818", "title": "", "text": "effect upon the public interest. The Celtics continue as an operating club, and indeed are this year’s champion. The law is well established that it is competition, and not individual competitors, that is protected by the antitrust laws. Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876 (S.D.N.Y.1968) aff’d, 405 F.2d 319 (2d Cir.), cert, denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). It is also clear that where the action the plaintiffs attack, the rejection from co-partnership, has neither anti-competitive intent nor effect, that conduct is not violative of the antitrust laws. Bay City-Abrahams Bros. Inc. v. Estee Lauder Inc., 375 F.Supp. 1206 (S.D.N.Y.1974). While summary judgment should be sparingly granted in antitrust litigation, Poller v. Columbia Broadcasting System Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), nevertheless, the mere filing of an antitrust complaint does not entitle the plaintiff to a full-dress trial in the absence of “significant probative evidence tending to support the complaint.” First National Bank v. Cities Service Corp., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). In the recent case of Coniglio v. Highwood Services, Inc., 495 F.2d 1286, p. 1293 (2d Cir. 1974), the Court of Appeals stated, that there was a total failure to demonstrate any adverse effect on competition, actual or potential, an issue perfectly well suited to objective, statistical analysis. In such instances, summary judgment is properly granted to lower the curtain on costly litigation where it is clear beyond cavil that one side simply has no support for its version of alleged facts. Since there was no exclusion of plaintiffs from competition with the alleged excluders, nor anti-competitive acts by them and no public injury occasioned thereby, the defendants’ acts did not constitute a violation of the antitrust laws and defendants’ motion for summary judgment is granted. Plaintiffs’ motion for partial summary judgment is denied and the action is dismissed. Settle order on 14 days’ notice. . In their answers to interrogatories in this case, all the active dissenting clubs assigned the conflict with Sehulman as the reason for" }, { "docid": "18849617", "title": "", "text": "351 U.S. at 380, 76 S.Ct. 994, the existence of reasonably interchangeable automobiles precludes any finding that competition has been restrained in any material manner. See Merit Motors, Inc. v. Chrysler Corp., 417 F.Supp. 263, 269 (D.D.C.1976), aff’d on other grounds, 187 U.S.App.D.C. 11, 569 F.2d 666 (D.C.Cir.1977); Mogul v. General Motors Corp., 391 F.Supp. 1305, 1313 (E.D.Pa.1975), aff’d, 527 F.2d 645 (3 Cir. 1976). Finally, although plaintiffs argue that the law is unsettled with respect to the requirement that a relevant market be demonstrated in an action asserting an attempt to monopolize in violation of section 2, this is hardly true. See, e. g., Kreager v. General Electric Co., supra, 497 F.2d at 471; Diehl & Sons, Inc. v. International Harvester Co., supra, 426 F.Supp. at 120-21. Accordingly, defendants’ motion for summary judgment dismissing the federal antitrust claims is granted. Dealer-Day-In-Court Act Claim Fallon’s fifth cause of action alleges defendants’ conduct violated provisions of the DDICA, which protects automobile dealers against manufacturers’ failures to “act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer.” 15 U.S.C. § 1222. “Good faith” is defined in the Act as “the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guar-' antee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.” 15 U.S.C. § 1221(e). Failure to act in good faith sufficient to bring the Act’s proscriptions into play is a limited concept, however, and is found only where there is evidence of a wrongful demand enforced by threats of coercion or intimidation. See Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556, 561 (2 Cir. 1970); Diehl & Sons, Inc. v. International Harvester Co., supra, 426 F.Supp. at 124. See also Marquis v. Chrysler Corp., 577" }, { "docid": "10473992", "title": "", "text": "the Sherman Act, 15 U.S.C. § 1 (1982), makes “[e]very contract ... or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, ... illegal.” “The gravamen of a charge under [section 1] is conduct in restraint of trade; no fundamental alteration of market structure is necessary.” Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 272 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). There are several elements to a section 1 claim. There must be (1) concerted action, (2) by two or more persons, and (3) the concerted action must unreasonably restrain interstate or foreign trade or commerce. Although Medtronic has alleged that “Telectronics, Inc. and Telectronics U.S.A., Inc. have conspired and contracted with ELA SA and ELA U.S.A. and Nucleus Ltd., Synthelabo S.A. and Nestle Alimenta and Siemens-Elema, Inc. to restrain trade,” Answer ¶ 83, it has not specified in this counterclaim what concerted actions these parties took to further their goal. “Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal.” Heart Disease Research Found. v. General Motors Corp., 463 F.2d 98, 100 (2d Cir.1972). A generous reading of Medtronic’s pleading indicates that the “anticompetitive” concerted action Telectronics allegedly engaged in was a conspiracy to violate the Medicare laws. Answer ¶¶ 63, 89. This allegation by itself is insufficient to state a claim under section 1 of the Sherman Act. “The cornerstone of [antitrust] law is competition. Congresses] intent in passing the Sherman Act was not to subject all business and commercial torts to the scrutiny of federal [antitrust] law.” Falstaff Brewing Co. v. Stroh Brewery Co., 628 F.Supp. 822, 826 (N.D.Cal.1986). Moreover, Medtronic has failed to plead antitrust injury, another necessary element of an antitrust claim. Thus this claim must be dismissed under Rule 12(b)(6). Section Two There are three types of civil actions which may be brought under section 2 of the Sherman Act, 15 U.S.C. § 2 (1982): (1) monopolization; (2) attempted monopolization;" }, { "docid": "18849609", "title": "", "text": "because Fallon could not sell his dealership to the highest bidder, because McDaniel was foreclosed from competing for the Bethpage franchise, and because McDaniel was unable to compete with other Oldsmobile dealers since he was not appointed by defendants, the defendants have committed a restraint of trade in violation of the antitrust laws (Plaintiffs’ Memorandum at 19(A)). These are hardly the sort of restraints proscribed by the antitrust laws. Rather, they are merely the result of defendants’ apparently lawful decision to terminate Fallon and replace it with Fox rather than McDaniel or any other applicant as a part of their own marketing strategy. Since defendants’ conduct does not run afoul of the antitrust laws, it is inconceivable that adverse effects on plaintiffs of that conduct should violate these laws without some evidence competition has been adversely affected. The court declines to hold that it does. The authority relied upon by plaintiffs, Lebanon Motors, Inc. v. Chrysler Corp., 283 F.Supp. 453 (W.D.Pa.1968); Rea v. Ford Motor Co., 355 F.Supp. 842 (W.D.Pa.1973), rev’d, 497 F.2d 577 (3 Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974); and Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338 (3 Cir. 1975), was considered by this court in Diehl & Sons, Inc. v. International Harvester Co., supra. There we refused to find an unreasonable restraint of trade arises out of a manufacturer’s decision, standing alone, to squeeze a dealer out of business based on the theory that competition is adversely affected because a would-be distributor might have charged lower prices than other distributors of the same product for the same manufacturer. 426 F.Supp. at 119, n.12. While we doubt the soundness of such a proposition, the court also notes that the cases arising in the Third Circuit all involve- allegations that automobile manufacturers employed predatory practices in attempts to monopolize the retail market in their own products, contentions not even eolorably present in this case. Here, moreover, there is no suggestion that defendants’ conduct was designed in any manner to eliminate competition at the retail level rather than to satisfy a" } ]

[ { "docid": "22710333", "title": "", "text": "the occurrence of the forced abortions. The testimonial inconsistencies about the scope and details of Lin’s behavior at the hospital — which might fatally undermine Lin’s claim to asylum if based on episodes of anti-government conduct— were not sufficiently weighty to overcome the consistency of numerous core facts relating to Lin’s claim for asylum based on his spouse’s forced abortions. As a result, while we cannot deem erroneous the IJ’s factual finding of testimonial embellishment with respect to Lin’s expression of dissent at the hospital, we conclude that these testimonial differences cannot on their own bear dispositive weight with respect to Lin’s claims that his spouse had been forced to abort two pregnancies. 2. Inconsistencies regarding the chronology of Lin’s wife’s medical procedures The IJ did, however, provide other grounds for his adverse credibility finding. The IJ correctly noted that Lin’s testimony in 2000 concerning his wife’s abortions and IUD insertions had changed from 1994 in certain particulars. First, Lin’s later testimony added several details, and in one instance corrected a date, regarding the insertion and removal of IUDs between his wife’s pregnancies. Second, Lin gave a different date for his wife’s first abortion. Lin acknowledged these variances, stating at the 2000 hearing that in 1994 he had been incorrect concerning the dates of certain events, and that in the interim, he had spoken to his wife, who had a better memory of the chronology, because they related to events that had affected her most directly. Lin now argues, as he did to the BIA, that the IJ erred in assessing these omissions and inconsistencies. The legal significance of the omissions in Lin’s 1994 testimony must be gauged in the light of what he was claiming at that hearing as against his claims in 2000. As discussed, at Lin’s first hearing, the details concerning his wife’s medical procedures were significantly less relevant to Lin’s asylum claim in 1994, as Lin was not then claiming asylum based on the persecution of his spouse. See Secaida-Rosales, 331 F.3d at 308; see also Mece v. Gonzales, 415 F.3d 562, 575-76 (6th Cir.2005) (“If" } ]

[ { "docid": "22667434", "title": "", "text": "IJ based his adverse credibility determination on certain inconsistencies and omissions between her testimony and her documentary submissions: (1) the absence in both Lin’s asylum application and her friend’s letter of any indication that Lin’s friend was in hiding to avoid persecution associated with the friend’s own Falun Gong activities; (2) the omission in both Lin’s asylum application and her father’s letter of Lin’s allegation that she was detained for twelve hours in 2004; (3) the omission in both Lin’s asylum application and her father’s letter of the purported bribe that her family had paid to secure her release. The IJ also found it implausible that the government would have issued a birth certificate to Lin during the time Lin claimed that the government was looking for her, noting that “this does raise some doubt about the legitimacy of [Lin’s] story.” On this basis, the IJ gave the birth certificate “reduced weight.” On the other hand, the IJ rejected the government’s argument that it was implausible that Lin was able to leave Beijing while the government was looking for her, noting that it was “conceivable that someone could leave a country despite the fact that other government officials are looking for the person.” Turning to her application for withholding of removal and relief under the Convention Against Torture, the IJ concluded that Lin had failed to establish her eligibility for either form of relief. Lin filed a timely appeal of the IJ’s decision to the Board of Immigration Appeals (“BIA”). In its October 2007 decision, the BIA affirmed the IJ’s adverse credibility determination and dismissed Lin’s appeal. In re Xiu Xia Lin, No. [ A XX XXX XXX ] (B.I.A. Oct. 31, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Dec. 16, 2005). She then sought review in our Court. In her petition before our Court, Lin argues that the IJ’s adverse credibility determination was flawed because: (1) the “discrepancies [and] omissions” relied upon by the IJ are “minimal”; (2) the IJ improperly relied on omissions in her documentary submissions as compared to her testimony;" }, { "docid": "22667439", "title": "", "text": "be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Id. (internal quotation marks omitted). When the BIA agrees with an IJ’s adverse credibility determination and adopts particular parts of the IJ’s reasoning, we review the decisions of both the BIA and the IJ. See, e.g., Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). In the instant case, each of three inconsistencies or omissions on which the IJ relied in finding Lin not credible were ancillary or collateral to Lin’s claims of past persecution. First, because Lin’s submissions reveal no inconsistency as to the fact of her detention in 2004, the omission — from both Lin’s asylum application and her father’s letter — of the fact that she was detained for twelve hours is not material to Lin’s claims of past persecution. Cf. Secaida-Rosales, 331 F.3d at 309 (concluding that the failure to mention one aspect of the murder of a family member was “not substantial” and likely not “material”); Xian Tuan Ye v. Dept of Home land Sec., 446 F.3d 289, 294 (2d Cir.2006) (finding inconsistencies material where petitioner “testified to a significantly different event that was nowhere outlined in his 1994 application” (internal quotation marks omitted)). Second, because Lin’s allegation that her friend was in hiding was not material to Lin’s own claim of persecution, the omission of that fact in her friend’s letter does not go to the heart of Lin’s claim. Cf. Secaida-Rosales, 331 F.3d at 309 (concluding that omission of friend’s death at a political rally was not material to petitioner’s own claim of persecution). Finally, the omission from Lin’s asylum application and her father’s letter of the purported bribe that her family had paid to secure her release is only indirectly related to the allegation that she was in fact detained. See id. As noted above, our Court determined in Secaidar-Rosales that it constitutes legal error for an IJ to base an adverse credibility determination on omissions and inconsistencies that are not material to an applicant’s claims of persecution. See page 165 ante. Although we have questioned the continuing" }, { "docid": "22702482", "title": "", "text": "that she registered her son in November 1988 and her daughter in May 1991, approximately one month after each child’s birth. When the IJ asked Lin why the documents did not comport with her testimony, she first said that she did not remember exactly when her children were registered. Lin then attempted to clarify by saying a mistake was made when she was issued new registration documents. The IJ found this explanation non-credible and “vague,” a finding we have no cause to disturb. The IJ also found Lin incredible based on perceived inconsistencies between her written asylum application and her testimony. In particular, Lin left out of her I-589 any mention of having an IUD inserted. Even if Lin was not truthful as to having an IUD inserted involuntarily, this would not, of course, speak directly to whether she was forcibly sterilized, which is the heart of Lin’s withholding claim. See In re Y-T-L-, 23 I. & N. Dec. 601, 607 (BIA 2003) (holding that coerced sterilization is a “permanent and continuing act of persecution”); see also Secaidco-Rosales, 331 F.3d at 308 (an adverse credibility finding may not rest on inconsistencies that “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim”); Diallo, 232 F.3d at 288 (“relatively minor and isolated” discrepancies in testimony “need not be fatal to credibility” where the disparities “do not concern material facts”). Lin’s omission of her IUD insertion, though, is not merely ancillary or collateral to the persecution complained of, but is rather an important episode in a narrative of continuing persecution at the hands of family planning officials. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (per curiam) (finding no error where an adverse credibility finding was based in part on an omission that bore a “legitimate nexus” to the petitioner’s claim of persecution). Although we might question placing dispositive weight on Lin’s neglecting to mention the IUD insertion in her initial application, it was not error for the IJ to consider it in making his credibility determination." }, { "docid": "22667435", "title": "", "text": "government was looking for her, noting that it was “conceivable that someone could leave a country despite the fact that other government officials are looking for the person.” Turning to her application for withholding of removal and relief under the Convention Against Torture, the IJ concluded that Lin had failed to establish her eligibility for either form of relief. Lin filed a timely appeal of the IJ’s decision to the Board of Immigration Appeals (“BIA”). In its October 2007 decision, the BIA affirmed the IJ’s adverse credibility determination and dismissed Lin’s appeal. In re Xiu Xia Lin, No. [ A XX XXX XXX ] (B.I.A. Oct. 31, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Dec. 16, 2005). She then sought review in our Court. In her petition before our Court, Lin argues that the IJ’s adverse credibility determination was flawed because: (1) the “discrepancies [and] omissions” relied upon by the IJ are “minimal”; (2) the IJ improperly relied on omissions in her documentary submissions as compared to her testimony; and (3) the IJ relied upon his own speculation in concluding that it was implausible that the government would have given her a birth certificate. Because Lin filed her asylum application after May 11, 2005, her claim is governed by the amendments made to the Immigration and Nationality Act (“INA”) by the passage of the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 n. 2 (2d Cir.2006). B. The Real ID Act Prior to the passage of the REAL ID Act, courts of appeals had developed different rules governing the proper basis for an IJ’s adverse credibility determination. The law of our circuit provided that when an IJ based an adverse credibility determination on inconsistencies in an asylum applicant’s testimony or between the testimony and the documents the applicant submitted, the IJ was required (1) to demonstrate a nexus between inconsistencies in an asylum" }, { "docid": "22667433", "title": "", "text": "abused by government officials after they discovered Falun Gong literature in her room at home. According to Lin, her family attempted to rescue her from detention and was able to save her only by bribing a guard. Sometime thereafter, she allegedly left China for the United States. In support of her application, Lin submitted several documents, including (1) a notarial birth certificate issued in February 2005; (2) photos of her practicing Falun Gong; (3) a letter from her father; and (4) a letter from the friend Lin claims introduced her to Falun Gong and who Lin alleges was later persecuted for practicing Falun Gong. Lin also testified in support of her application. At a March 2005 removal hearing, the Immigration Judge (“IJ”) found that Lin was removable as charged. A subsequent hearing was held on December 16, 2005 to determine Lin’s eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. At the conclusion of that hearing, the IJ found Lin lacking in credibility and denied her application for asylum. Specifically, the IJ based his adverse credibility determination on certain inconsistencies and omissions between her testimony and her documentary submissions: (1) the absence in both Lin’s asylum application and her friend’s letter of any indication that Lin’s friend was in hiding to avoid persecution associated with the friend’s own Falun Gong activities; (2) the omission in both Lin’s asylum application and her father’s letter of Lin’s allegation that she was detained for twelve hours in 2004; (3) the omission in both Lin’s asylum application and her father’s letter of the purported bribe that her family had paid to secure her release. The IJ also found it implausible that the government would have issued a birth certificate to Lin during the time Lin claimed that the government was looking for her, noting that “this does raise some doubt about the legitimacy of [Lin’s] story.” On this basis, the IJ gave the birth certificate “reduced weight.” On the other hand, the IJ rejected the government’s argument that it was implausible that Lin was able to leave Beijing while the" }, { "docid": "22794944", "title": "", "text": "mention their participation in the key political demonstration they later claimed was the basis for their arrests and subsequent persecution. This is not a situation where Petitioners failed to “remember non-material, trivial details that were only incidentally related to [their] claim of persecution.” Kaur v. Gonzales, 418 F.3d 1061,1064 (9th Cir.2005). Rather, Petitioners omitted any mention of their participation in a demonstration that is the entire basis for their claim for political asylum. When confronted with the omission at the asylum hearing, Kin stated that he felt inclusion in the asylum applications was not necessary because the demonstration would be discussed at the hearing. This explanation is not persuasive enough to compel the conclusion that the omissions were immaterial. Petitioners’ omissions in this case are similar to the omission in Alvarez-Santos. The 1998 political demonstration and Petitioners’ participation in it were crucial to establishing they were persecuted for their political opinion, yet no mention was made of the demonstration until the merits hearing on the applications. These omissions constitute substantial evidence to support the BIA’s adverse credibility determinations. C Petitioners argue that the BIA’s adverse credibility determinations are not supported by substantial evidence because the BIA should not have relied on inconsistencies between Kin’s testimony and Senator Thach’s testimony when it made an adverse credibility finding against Prak. We believe that substantial evidence does support the BIA’s adverse credibility determinations because it is the BIA’s duty to consider all evidence presented to it when making such findings. The asylum merits hearing before an IJ or the BIA provides the alien an opportunity to present testimony, documentary evidence, and arguments in support of his claim for asylum. Aliens are afforded the opportunity to explain inconsistencies within their own personal testimony because the true story may get lost in translation. See Tekle, 533 F.3d at 1053 (finding legal error in not affording the alien an opportunity to explain the purported inconsistency because the alien may have been able to clarify her original answer); Zi Lin Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004) (stating that the IJ’s failure to question the" }, { "docid": "22667442", "title": "", "text": "establishes that an asylum applicant is not credible. 8 U.S.C. § 1158(b)(l)(B)(iii). “[E]ven where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (citation and internal quotation marks omitted); see also In re A-S-, 21 I. & N. Dec. 1106, 1112 (B.I.A. Feb. 19, 1998) (noting that an IJ must conduct an “overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence”); accord Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337, n. 19 (2d Cir.2006). We defer therefore to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling. in the present case, the inconsistencies and omissions relied upon by the IJ were not directly material to Lin’s claims, yet the cumulative effect of those inconsistencies reasonably could have affected the IJ’s evaluation of Lin’s credibility. Lin’s failure to include the length of her detention in her asylum application and the omission of that fact from her father’s letter could have reasonably convinced the IJ that her story of persecution was fabricated. Similarly, the failure of Lin’s friend to mention that the friend was in hiding from Chinese authorities contradicted Lin’s testimony that her friend feared further persecution. Because Lin gave no plausible explanation for this omission from her friend’s letter, the omission reasonably raised doubts as to the accuracy of Lin’s account of her own persecution. These questions about Lin’s credibility were further compounded by the omission from her father’s letter of the fact that he paid a bribe to have Lin released from detention by government officials. Because we conclude that the cumulative effect of these inconsistencies could have led a reasonable fact-finder to find that Lin was not credible, we must affirm the IJ’s adverse credibility determination. Lin also challenges as impermissible speculation the" }, { "docid": "22663653", "title": "", "text": "connection with her asylum application indicated that her second pregnancy had been discovered during a required quarterly IUD check-up in October 1997, whereas petitioner testified before the IJ that her second pregnancy had instead been discovered when local birth control officials came to her place of work after she had missed both the July and October 1997 IUD check-ups. Because the circumstances under which petitioner's second pregnancy was discovered and terminated were material to her claim of past and future persecution, the IJ did not err in relying on this inconsistency. See Xu Duan Dong, 406 F.3d at 111-12 (upholding adverse credibility determination based on omission of \"an essential factual allegation underlying petitioner’s asylum claim”). . The IJ noted in particular that there were inconsistencies between petitioner’s testimony and the documentary evidence in the record regarding her age at the time her IUD was inserted, the date on which the IUD insertion occurred, and when petitioner was instructed to report for sterilization after her abortion. Although the IJ acknowledged that these inconsistencies were \"minor,” the IJ did not err in stressing the cumulative impact of such inconsistencies in making his adverse credibility determination. See IJ Decision at 11 (\"Although this is a minor inconsistency[,] there are plenty of minor inconsistencies that do add up and end up to undermine[] [petitioner’s] credibility.”); see also In re A-S-, 21 I. & N. Dec. 1106, 1112 (B.I.A. Feb. 19, 1998) (\"[A] credibility determination apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.”) (emphasis added) (internal quotation marks omitted). . See post at 341-42. . Although Cao He Lin and our prior decision in this case assessed whether we could be confident that the IJ would reach the same result on remand absent error, see Xiao Ji Chen, 434 F.3d at 161-62; Cao He Lin, 428 F.3d at 395, we refer here to \"the agency” in order to account for cases in which we are required to review a substantive decision directly from the BIA, as well as" }, { "docid": "22702484", "title": "", "text": "We are less comfortable with the IJ’s reliance on another omission: Lin’s husband’s failure to mention in his affidavit in support of her application that he had been detained for one day before her sterilization-—an event that Lin herself testified to in detail before the IJ and which she included in her supplemental affidavit in support of her asylum application. Given Lin’s extensive testimony on this matter, the omission of potential persecution of Lin’s husband in his own affidavit—an omission, incidentally, that was mentioned on the record for the first time in the IJ’s decision—lies within the category of inconsistencies which “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim.” Secaida-Rosales, 331 F.3d at 308. The IJ’s reliance on this omission, therefore, was error. Were overreliance on a tangential omission the sole error the IJ made in reaching his adverse credibility determination, this case would likely be akin to those cases in which we have held that, despite some errors, remand to the BIA was futile. See, e.g., Singh v. BIA, 438 F.3d 145, 148-50 (2d Cir.2006) (per curiam); Qyteza v. Gonzales, 437 F.3d 224, 227-28 (2d Cir.2006) (per curiam); Xiao Ji Chen, 434 F.3d at 159-60. The IJ’s most troubling finding in this case, however, is also the one that, by his own description, he relied on as “the most critical issue here.” And the fact that the IJ stated that this finding was key to his credibility determination is crucial under the futility analysis of both Cao He Lin and Xiao Ji Chen, because by his own account the IJ relied on that finding as the “most critical” element of his credibility determination. Lin testified that she was forcibly sterilized with only her hands and feet tied down, and that the procedure was intensely painful. The IJ found this account “absolutely” incredible, concluding that, based on the “judicially] notice[d] ... fact that an individual’s ... thigh muscles ... are ... probably [the] strongest muscles in a person[’]s body[,][a]ny person who would be subjected to the pain" }, { "docid": "22667441", "title": "", "text": "relevance of the Secaidar-Ro-sales fine of cases since the passage of the REAL ID Act, we have not directly addressed the conflict between those cases and the statute. See Liang Chen, 454 F.3d at 107 n. 2 (observing that the statutory language as amended by the REAL ID Act “would seem to overrule certain holdings of Secaidar-Rosales and other decisions of this Court” with respect to asylum applications filed after May 11, 2005); see also id. at 108 n. 3 (same). Now squarely presented with the question, we conclude that our previous holding that an IJ may not base an adverse credibility determination on inconsistencies and omissions that are “collateral or ancillary” to an applicant’s claims, see, e.g., Secaida-Rosales, 331 F.3d at 308, has been abrogated by the amendments to the statutory standard imposed by the REAL ID Act. For cases filed after May 11, 2005, the effective date of the Act, an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the “totality of the circumstances” establishes that an asylum applicant is not credible. 8 U.S.C. § 1158(b)(l)(B)(iii). “[E]ven where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (citation and internal quotation marks omitted); see also In re A-S-, 21 I. & N. Dec. 1106, 1112 (B.I.A. Feb. 19, 1998) (noting that an IJ must conduct an “overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence”); accord Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337, n. 19 (2d Cir.2006). We defer therefore to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling. in the present case, the inconsistencies and omissions relied upon by the IJ were not directly material to Lin’s claims, yet the cumulative" }, { "docid": "22667443", "title": "", "text": "effect of those inconsistencies reasonably could have affected the IJ’s evaluation of Lin’s credibility. Lin’s failure to include the length of her detention in her asylum application and the omission of that fact from her father’s letter could have reasonably convinced the IJ that her story of persecution was fabricated. Similarly, the failure of Lin’s friend to mention that the friend was in hiding from Chinese authorities contradicted Lin’s testimony that her friend feared further persecution. Because Lin gave no plausible explanation for this omission from her friend’s letter, the omission reasonably raised doubts as to the accuracy of Lin’s account of her own persecution. These questions about Lin’s credibility were further compounded by the omission from her father’s letter of the fact that he paid a bribe to have Lin released from detention by government officials. Because we conclude that the cumulative effect of these inconsistencies could have led a reasonable fact-finder to find that Lin was not credible, we must affirm the IJ’s adverse credibility determination. Lin also challenges as impermissible speculation the IJ’s suggestion that it was implausible that Lin was able to obtain a copy of her birth certificate during a time she claims that government officials were looking for her. Although we have previ ously held that an IJ’s opinion as to the plausibility of a petitioner’s account could not serve as the basis for an adverse credibility determination, see Secaida-Rosales, 331 F.3d at 310, there is no doubt that this holding has been abrogated by the REAL ID Act, which directs an IJ to evaluate an applicant’s credibility in light of the “inherent plausibility of the applicant’s ... account” of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii); cf. Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir.2008) (“[WJhen an adverse credibility finding is based partly or entirely on implausibility, we review the entire record, not whether each unusual or implausible feature of the account can be explained or rationalized.”) CONCLUSION For the reasons stated above, the petition for review is denied. Any pending motion to stay removal is dismissed as moot. . The full text" }, { "docid": "22667440", "title": "", "text": "F.3d 289, 294 (2d Cir.2006) (finding inconsistencies material where petitioner “testified to a significantly different event that was nowhere outlined in his 1994 application” (internal quotation marks omitted)). Second, because Lin’s allegation that her friend was in hiding was not material to Lin’s own claim of persecution, the omission of that fact in her friend’s letter does not go to the heart of Lin’s claim. Cf. Secaida-Rosales, 331 F.3d at 309 (concluding that omission of friend’s death at a political rally was not material to petitioner’s own claim of persecution). Finally, the omission from Lin’s asylum application and her father’s letter of the purported bribe that her family had paid to secure her release is only indirectly related to the allegation that she was in fact detained. See id. As noted above, our Court determined in Secaidar-Rosales that it constitutes legal error for an IJ to base an adverse credibility determination on omissions and inconsistencies that are not material to an applicant’s claims of persecution. See page 165 ante. Although we have questioned the continuing relevance of the Secaidar-Ro-sales fine of cases since the passage of the REAL ID Act, we have not directly addressed the conflict between those cases and the statute. See Liang Chen, 454 F.3d at 107 n. 2 (observing that the statutory language as amended by the REAL ID Act “would seem to overrule certain holdings of Secaidar-Rosales and other decisions of this Court” with respect to asylum applications filed after May 11, 2005); see also id. at 108 n. 3 (same). Now squarely presented with the question, we conclude that our previous holding that an IJ may not base an adverse credibility determination on inconsistencies and omissions that are “collateral or ancillary” to an applicant’s claims, see, e.g., Secaida-Rosales, 331 F.3d at 308, has been abrogated by the amendments to the statutory standard imposed by the REAL ID Act. For cases filed after May 11, 2005, the effective date of the Act, an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the “totality of the circumstances”" }, { "docid": "22667438", "title": "", "text": "applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(l)(B)(iii) (emphasis added). Under the standard established by the REAL ID Act, an IJ is required to evaluate inconsistencies in light of the “totality of the circumstances.” Id. DISCUSSION We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). When evaluating credibility deter- ruinations for substantial evidence, we afford “particular deference” to the IJ. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). We must assess whether the IJ has provided “specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.” Id. at 74 (internal quotation marks omitted). “Where the IJ’s adverse credibility finding is based on specific examples ... of inconsistent statements” or “contradictory evidence,” a “reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Id. (internal quotation marks omitted). When the BIA agrees with an IJ’s adverse credibility determination and adopts particular parts of the IJ’s reasoning, we review the decisions of both the BIA and the IJ. See, e.g., Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). In the instant case, each of three inconsistencies or omissions on which the IJ relied in finding Lin not credible were ancillary or collateral to Lin’s claims of past persecution. First, because Lin’s submissions reveal no inconsistency as to the fact of her detention in 2004, the omission — from both Lin’s asylum application and her father’s letter — of the fact that she was detained for twelve hours is not material to Lin’s claims of past persecution. Cf. Secaida-Rosales, 331 F.3d at 309 (concluding that the failure to mention one aspect of the murder of a family member was “not substantial” and likely not “material”); Xian Tuan Ye v. Dept of Home land Sec., 446" }, { "docid": "22667432", "title": "", "text": "IJ may rely on omissions and inconsistencies that do not directly relate to the applicant’s claim of persecution as long as the totality of the circumstances establish that the applicant is not credible. BACKGROUND A. Factual and Procedural History Xiu Xia Lin, a native and citizen of China, entered the United States in January 2005 without inspection and shortly thereafter was served with a Notice to Appear charging her with being removable. In July 2005, Lin filed an application for asylum, withholding of removal, and relief under the Convention Against Torture, based on persecution she allegedly faced in China on account of her practice of Falun Gong. Lin’s claims of persecution rest on two alleged incidents with Chinese officials. She alleges that in June 2000, upon discovering that she had criticized the government’s treatment of Falun Gong practitioners, officials at her school beat her and forced her to sign a statement promising that she would discontinue her involvement with Falun Gong. A second incident occurred in July 2004, when she was allegedly detained and physically abused by government officials after they discovered Falun Gong literature in her room at home. According to Lin, her family attempted to rescue her from detention and was able to save her only by bribing a guard. Sometime thereafter, she allegedly left China for the United States. In support of her application, Lin submitted several documents, including (1) a notarial birth certificate issued in February 2005; (2) photos of her practicing Falun Gong; (3) a letter from her father; and (4) a letter from the friend Lin claims introduced her to Falun Gong and who Lin alleges was later persecuted for practicing Falun Gong. Lin also testified in support of her application. At a March 2005 removal hearing, the Immigration Judge (“IJ”) found that Lin was removable as charged. A subsequent hearing was held on December 16, 2005 to determine Lin’s eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. At the conclusion of that hearing, the IJ found Lin lacking in credibility and denied her application for asylum. Specifically, the" }, { "docid": "22667431", "title": "", "text": "PER CURIAM: This petition requires us to consider the appropriate basis for an adverse credibility determination under the REAL ID Act, Pub L. No. 109-13, 119 Stat. 231 (2005). We write to clarify that the Act, which permits an IJ to base an adverse credibility finding on, inter alia, a lack of consistency “between the applicant’s ... written and oral statements!,] ... the [in-Iconsistency of such statements with other evidence of record ... and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,” see 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added), abrogated our holding in Secaida-Rosales v. INS that “[ijnconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding ... especially ... when the inconsistencies ... concern ... matters collateral or ancillary to the [applicant’s] claim” for relief, 331 F.3d 297, 308 (2d Cir.2003) (internal quotation marks omitted). We conclude that, in evaluating an asylum applicant’s credibility, an IJ may rely on omissions and inconsistencies that do not directly relate to the applicant’s claim of persecution as long as the totality of the circumstances establish that the applicant is not credible. BACKGROUND A. Factual and Procedural History Xiu Xia Lin, a native and citizen of China, entered the United States in January 2005 without inspection and shortly thereafter was served with a Notice to Appear charging her with being removable. In July 2005, Lin filed an application for asylum, withholding of removal, and relief under the Convention Against Torture, based on persecution she allegedly faced in China on account of her practice of Falun Gong. Lin’s claims of persecution rest on two alleged incidents with Chinese officials. She alleges that in June 2000, upon discovering that she had criticized the government’s treatment of Falun Gong practitioners, officials at her school beat her and forced her to sign a statement promising that she would discontinue her involvement with Falun Gong. A second incident occurred in July 2004, when she was allegedly detained and physically" }, { "docid": "22702483", "title": "", "text": "see also Secaidco-Rosales, 331 F.3d at 308 (an adverse credibility finding may not rest on inconsistencies that “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim”); Diallo, 232 F.3d at 288 (“relatively minor and isolated” discrepancies in testimony “need not be fatal to credibility” where the disparities “do not concern material facts”). Lin’s omission of her IUD insertion, though, is not merely ancillary or collateral to the persecution complained of, but is rather an important episode in a narrative of continuing persecution at the hands of family planning officials. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (per curiam) (finding no error where an adverse credibility finding was based in part on an omission that bore a “legitimate nexus” to the petitioner’s claim of persecution). Although we might question placing dispositive weight on Lin’s neglecting to mention the IUD insertion in her initial application, it was not error for the IJ to consider it in making his credibility determination. We are less comfortable with the IJ’s reliance on another omission: Lin’s husband’s failure to mention in his affidavit in support of her application that he had been detained for one day before her sterilization-—an event that Lin herself testified to in detail before the IJ and which she included in her supplemental affidavit in support of her asylum application. Given Lin’s extensive testimony on this matter, the omission of potential persecution of Lin’s husband in his own affidavit—an omission, incidentally, that was mentioned on the record for the first time in the IJ’s decision—lies within the category of inconsistencies which “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim.” Secaida-Rosales, 331 F.3d at 308. The IJ’s reliance on this omission, therefore, was error. Were overreliance on a tangential omission the sole error the IJ made in reaching his adverse credibility determination, this case would likely be akin to those cases in which we have held that, despite some errors, remand to the" }, { "docid": "22457674", "title": "", "text": "Lin’s failure to provide the false sterilization certificate and a letter from her husband as evidence at the hearing. Discussing the absence from the record of a letter from Lin’s husband, the IJ, apparently referencing Lin’s testimony about the 10,000 Yuan fine, emphasized that “corroboration is essential” because of the “serious implausibility” in Lin’s testimony. We have previously explained that an IJ cannot render an adverse credibility determination based on lack of corroboration without (1) ruling explicitly on the credibility of the applicant’s testimony, (2) explaining why it is reasonable in the circumstances of a particular case to expect corroboration, and (3) assessing the sufficiency of the applicant’s explanations for the absence of corroborating evidence. Diallo, 232 F.3d at 287. With respect to the false sterilization certificate, Lin testified that she never saw the document and that her husband had submitted it to the village government in 1995. The IJ neither explained why it was reasonable to expect Lin to have a copy of the certificate nor assessed the sufficiency of Lin’s explanations for its absence; the IJ thus failed to meet the standard we established in Diallo. With respect to a letter from Lin’s husband, the IJ’s insistence on corroboration clearly stemmed from the perceived, but non-existent, inconsistency in Lin’s testimony and therefore did not constitute an independent ground for denying Lin’s application. The IJ also noted that Lin “was extremely hesitant in answering many questions posed to her.” An IJ’s assessment of an applicant’s demeanor is entitled to deference because of the IJ’s unique advantage of observing the applicant at the asylum hearing. Zhou Yun Zhang, 386 F.3d at 73. The IJ’s limited and passing reference to Lin’s demeanor, however, is insufficient to conclude that, absent the errors, the IJ would have made the same credibility determination in light of the IJ’s repeated emphasis on her other erroneous grounds for disbelieving Lin. D. Relying on Lin’s testimony that she has no present fear of being sterilized if she were to return to China unless she were to become pregnant again, the IJ concluded that Lin’s claim was “too" }, { "docid": "22541046", "title": "", "text": "denial of asylum and withholding of removal is upheld. We note that while Yang’s application included a request for CAT relief, the IJ did not address that request anywhere in his decision, nor did the BIA. Although we see little evidence in the record to support that claim, it is for the agency to make eligibility determinations in the first instance, see INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Because, for the reasons set forth below, we remand this case to the agency, the agency should also address Yang’s eligibility for CAT relief on remand. B. Ming Liang Lin The IJ’s adverse credibility determination in Lin’s case is also supported by substantial evidence. The IJ based her determination on, inter alia, inconsistencies in Lin’s testimony and application re garding when he was baptized. Since Lin’s claims of persecution are based on his practice of religion, his inconsistent testimony regarding when and how many times he had been baptized constitutes a substantial discrepancy. The IJ, therefore, properly relied on Lin’s inconsistent testimony in support of her adverse credibility determination. See Secaidcir-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003) (to form the basis of an adverse credibility determination, a discrepancy must be “substantial” when measured against the record as a whole). In addition, the IJ found that Lin had “no identity documents that [were] good and an ID card that [was], in fact, fraudulent.” Submission of inconsistent statements as well as a fraudulent document in support of an asylum application can constitute substantial evidence supporting an adverse credibility determination. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151,156-57 (2d Cir.2006); In re 0-D-, 211. & N. Dec. 1079,1083 (B.I.A. 1998) (determining that presentation of a false document in support of an asylum application can be fatal to the credibility of the applicant). Because the government’s forensics report indicated that Lin’s “Resident Identification Card” was a counterfeit, and Lin’s only explanation was that it was bought from the public security office, the IJ reasonably concluded that this submission fatally undermined Lin’s overall credibility." }, { "docid": "22541047", "title": "", "text": "on Lin’s inconsistent testimony in support of her adverse credibility determination. See Secaidcir-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003) (to form the basis of an adverse credibility determination, a discrepancy must be “substantial” when measured against the record as a whole). In addition, the IJ found that Lin had “no identity documents that [were] good and an ID card that [was], in fact, fraudulent.” Submission of inconsistent statements as well as a fraudulent document in support of an asylum application can constitute substantial evidence supporting an adverse credibility determination. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151,156-57 (2d Cir.2006); In re 0-D-, 211. & N. Dec. 1079,1083 (B.I.A. 1998) (determining that presentation of a false document in support of an asylum application can be fatal to the credibility of the applicant). Because the government’s forensics report indicated that Lin’s “Resident Identification Card” was a counterfeit, and Lin’s only explanation was that it was bought from the public security office, the IJ reasonably concluded that this submission fatally undermined Lin’s overall credibility. Id.; id. The IJ also relied Lin’s failure to call as witnesses his cousin — who was living in New Jersey — or members of his current parish in New York. An applicant’s failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Because Lin’s testimony was not otherwise credible, the IJ properly relied on the lack of corroborative evidence. Moreover, here, the IJ warned Lin before his actual hearing that she (a) would give the letter attesting to his church membership no weight in the absence of a witness, and (b) would give his cousin’s affidavit “no weight whatsoever.” In sum, the IJ’s adverse credibility determination was supported by substantial evidence in light of the record as a whole. The factors that the IJ properly relied upon were central to Lin’s claim of persecution. We note, however," }, { "docid": "12003604", "title": "", "text": "8 U.S.C. § 1252(d)(1). CONCLUSION For the reasons we have discussed, we dismiss Balachova’s direct claims and Krasnoperov’s CAT claim and otherwise grant review, vacate the BIA’s order of removal, and remand for further proceedings in conformity with this decision. Our dismissal of Balachova’s direct claims is not intended to prejudice any derivative claim she may have on Krasnoperov’s application. . The BIA order names only Balachova as a respondent and gives only her alien number. However, because both petitioners jointly appealed the IJ's order and the BIA simply affirmed the \"results of the decision below,” we assume that the BIA rejected Krasnoper-ov's claims as well. . Although we recently held that the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005), abrogated significant portions of Secaida-Ro-sales for asylum petitions filed after May 11, 2005, see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008), petitioners’ applications were filed long before the effective date of the REAL ID Act. In addition, the proposition for which we have cited Secaida-Rosales is not affected by Xiu Xia Lin. . The government argues that we should dismiss Krasnoperov's claim that the adverse credibility determination was not supported by substantial evidence because he did not attack the IJ’s credibility findings in his brief to the BIA. However, Krasnoperov did argue that if the IJ had “taken time and read the materials submitted by the respondent, and really listened to the respondent’s testimony, then it would be clear that this respondent was very credible.” We have held that an individual who raises a general argument may be able to raise specific subsidiary legal arguments or arguments by extension. See Gill v. INS, 420 F.3d 82, 86-87 (2d Cir. 2005). Moreover, the specificity with which a petitioner must raise arguments before the BIA correlates with the specificity of the IJ's findings. Given the failure of the IJ to indicate which specific portions of Krasnoperov’s testimony caused her to find that testimony incredible and the generally disorganized nature of her decision, we hold that Krasnoper-ov sufficiently exhausted his attack on the IJ’s credibility analysis." } ]

[ { "docid": "20916157", "title": "", "text": "(the parties have only stated when the notes were paid), the contemplated delay inherent in payment of a note renders the exchange one which is not contemporaneous. In re Candor Diamond, supra, 44 B.R. at 197. The lack of contemporaneity is particularly evident here where the notes were paid months after the goods were delivered. Thus, all the transfers at issue were on account of antecedent debts. 4.WHILE THE DEBTOR WAS INSOLVENT Under section 547(f), the debtor is presumed to be insolvent during the 90-day preference period. That presumption, as mandated by Fed.R.Evid. 301 made applicable in bankruptcy proceedings by Fed.R. Bankr.Pro. 9017, “requires the party against whom the presumption exists to come forward with some evidence to rebut the presumption, but the burden of proof remains on the party in whose favor the presumption exists.” H.Rep. No. 95-595, 95th Cong. 1st Sess. 375 (1977), U.S.Code. Cong. & Admin.News 1978, pp. 5787, 6331; See 4 L. King, Collier on Bankruptcy ¶ 547.26 at 547-109 (15th ed. 1985); In re Emerald Oil Co., 695 F.2d 833 (5th Cir.1983); Keydata Corporation v. Boston Edison Co. (In re Keydata Corp.), 37 B.R. 324, 327 (Bankr.D.Mass.1983). Specifically, “the burden of proof in the sense, of the risk of nonpersuasion remains on the party in favor of whom the presumption operates.” Clay v. Traders Bank, 708 F.2d 1347, 1351 (8th Cir.1983). Several courts have explored what exactly constitutes “some evidence” rebutting the insolvency presumption. In Keydata Corp. the court found the defendant did not meet its burden of coming forward with some evidence where the defendant showed only that the debtor was current on its bills but not that the value of the assets exceeded that of the liabilities. Id. 37 B.R. at 327. Again, the defendant/creditor was unsuccessful in Mazer v. Aetna Finance Company (In re Zuni), 6 B.R. 449, 451 (Bankr.D.N.M.1980) where he only sought to attack the value of the property as reflected in the petition. See also Pippin v. John Deere Company (In re Pippin), 46 B.R. 281, 284 (Bankr.W.D.La.1984) (purchase statement prepared more than five months prior to the filing" } ]

[ { "docid": "13575448", "title": "", "text": "for the benefit of MARAD, a creditor, since MARAD received all rights and interests to the charter hire. (See Assignment Article 1.1). The Assignment and Depository Agreement were made on account of an antecedent debt, MARAD’s pre-existing mortgage debt. And the Assignment and Depository Agreement were executed on November 4, 1986, within 90 days of the Petition Date. 1. Was the Debtor Insolvent at the Time of the Transfer? Pursuant to section 547(f), a debt- or enjoys the presumption of insolvency during the ninety (90) days prior to the bankruptcy filing. See 11 U.S.C. § 547(f). The party against whom the presumption rests, must rebut the presumption of insolvency. Akers v. Koubourlis (In re Koubourlis), 869 F.2d 1319, 1322 (9th Cir.1989). Section 101 of the Code defines, in pertinent part, insolvency “as a financial condition such that the sum of such entity’s debt is greater than all of such entity’s property, at fair valuation_” 11 U.S.C. § 101(31)(A) (emphasis added). In determining insolvency, the balance sheet analysis is applied: whether the debtor’s assets exceed its liabilities. In re Koubourlis, 869 F.2d at 1321; Jahn v. Fassnacht (In re A. Fassnacht & Sons, Inc.), 826 F.2d 458, 462 (6th Cir.1987). MARAD attempts to rebut the statutory presumption of insolvency by asserting that the entry for paid-in-capital in the Debtor’s October and November 1986 financial statements (Plaintiff’s Exhibit “J”) should be excluded from the insolvency analysis because that is not a liability. Once the paid-in-capital is excluded, the Debtor’s assets exceeds its liabilities. In its analysis, MARAD relies on the book value of the Debtor’s assets as provided in the October and November 1986 financial statements. When determining solvency, section 101(31) provides that the value of the assets which is taken into account is the “fair value”. Fair value means neither forced sale nor going concern value, rather it refers to: [T]he amount of money that the debtor could raise from its property in a short period of time, but not so short as to approximate a forced sale, if the debtor operated as a reasonable prudent and diligent businessman with his" }, { "docid": "4758791", "title": "", "text": "the trustee must prove, by a preponderance of the evidence, the following elements: 1. A transfer of the debtor’s property; 2. Made within 90 days before the date of petition filing; 3. Made to or for the benefit of the creditor; 4. On account of an antecedent debt; 5. While the debtor was insolvent; 6. Which enabled the creditor to receive more than it would have received in a Chapter 7 liquidation if the transfer had not been made. In re Hoggarth, 78 B.R. 1000, 1001 (Bankr.D.N.D.1987). With regard to the fifth element section 547(f) provides that the debtor is presumed to have been insolvent during the 90 days preceding the date of the petition filing. John Deere asserts that, in spite of the presumption of insolvency, the trustee failed in his burden of persuasion because he did not offer any evidence regarding the Debtor’s financial condition at the time of the transfer. The Senate Judiciary Committee notes regarding section 547(f) state that the presumption of insolvency operates in accord with Rule 301 of the Federal Rules of Evidence. Rule 301, in part, provides that “a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion.” Thus the ultimate burden of persuasion is not shifted by the presumption of section 547(f). Clay v. Traders Bank of Kansas City, 708 F.2d 1347, 1351 (8th Cir.1983). In the case at bar the trustee has the burden of persuading the court of each of the elements of a section 547 claim. Thus he generally has the burden of producing evidence to convince the court of each of the elements. With regard to the element of the Debtor’s insolvency, however, the presumption of section 547(f) shifts to John Deere the burden of producing at least some evidence that the Debtor was solvent. See e.g., In re Belize Airways Ltd., 18 B.R. 485, 489 (Bankr.S.D.Fla.1982). When the creditor offers no evidence at all" }, { "docid": "1191115", "title": "", "text": "within the 90 day preference period. Section 547(b)(3) requires that the debtor be insolvent at the time of the transfer. In response to the problems engendered by requiring proof of insolvency under the Act, Congress included Section 547(f) in the Bankruptcy Code, which states: (f) For the purpose of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition. 11 U.S.C. § 547(f). However, the presumption of insolvency applies only during the ninety days immediately preceding the date of the filing of the petition. Hence, because the Trustee, in Counts I and Y, is challenging transfers to an insider that occurred more than ninety days before the filing of the petition, the presumption is of no apparent circumstance. In re Camp Rockhill, Inc., 12 B.R. 829, 833 (Bankr.E.D.Pa.1981). Therefore, the Trustee must establish the debtor’s insolvency on the dates the transfers outside the ninety-day period were made. Id. Insolvency is defined by § 101(26) of the Code, which states: (26) “insolvent” means— (A) with reference to an entity other than a partnership, financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation, exclusive of— (i) property transferred, concealed, or removed with intent to hinder, delay, or defraud such entity’s creditors; and (ii) property that may be exempted from property of the estate under section 522 of this title; ... 11 U.S.C. § 101(26)(A) (currently codified at 11 U.S.C. 101(31)(A)). This section incorporates the “balance sheet” test of insolvency. In other words, a debtor is insolvent when the fair value of his liabilities exceeds the fair value of his assets. In re Camp Rockhill, Inc., supra, 12 B.R. at 833, citing, National Buy-Rite, Inc., 7 B.R. 407, 410 (Bankr.N.D.Ga.1980). At trial, the Trustee produced for testimony, Robert Boory (“Boory”), senior accountant with the accounting firm of Be-nen, Saidel & Company. Boory is the accountant who was in charge of compiling the debtor’s books and records and preparing the debtor’s financial statements and income" }, { "docid": "13983996", "title": "", "text": "express no opinion as to whether the debtor was insolvent or not in an asset-liability sense during the 90 day period preceding the filing of the bankruptcy petition. This is all the evidence before the Court on the issue of insolvency. . Of course, it is not unusual to have a dearth of evidence on the issue of insolvency in a preference proceeding under the Bankruptcy Code. That is due to the fact that the debtor is presumed to be insolvent during the 90 days preceding the filing of the petition for preference purposes. 11 U.S.C. § 547(f). However, this presumption is rebuttable. The effect of the presumption of insolvency raised by § 547(f) is defined by Federal Rule of Evidence 301. See also Bankruptcy Rule 9017; In re Art Shirt Ltd., Inc., 44 B.R. 523, 525, n. 3 (Bankr.E.D.Pa.1984); S.Rep. No. 95-989, 95th Cong., Notes on the Committee of the Judiciary, reprinted in U.S. Code Cong. & Ad.News 5787. Rule 301 requires the party against whom the presumption is raised to come forward with evidence of the debtor’s solvency to meet or rebut the presumption, but it does not shift the burden of proof. In this case, the burden of proving the debtor was insolvent at the time of the transfer remains with the trustee. In re Alithochrome Corp., 53 B.R. 906, 912 (Bankr.S.D.N.Y.1985); In re A. Fassnacht & Sons, Inc., 45 B.R. 209, 210 (Bankr.E.D.Tenn.1984); Matter of Brooks, 44 B.R. 963, 965 (Bankr.S.D.Ohio 1984). Here, Paisano has produced sufficient evidence to rebut the presumption and avoid an adverse finding on the issue of insolvency. It has presented a financial statement showing that the debtor had a significant positive net worth some 60 days before the transfer in question. The trustee has offered little to show that the debtor was in fact insolvent as of the date of the transfer in question. The evidence before the Court concerning the debtor’s insolvency is the debtor’s September 30, 1982 financial statement and the affidavit of the accountant. The financial statement reflects a positive net worth of $1,359,997.87. The accountant states that" }, { "docid": "10177614", "title": "", "text": "or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the filing of the petition; ... (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under Chapter 7 of this title. (B) The transfer had not been made; and (C) Such creditor received payment of such debt to the extent provided by the provisions of this title. The only element which is in issue here is whether the Debtor was insolvent on the dates of the transfers, as required by § 547(b)(3). In discussing this criterion, Collier states that, for purposes of § 547(b)(3), at variance from the insolvency test in other contexts, “a ‘balance sheet’ test ... determine^] insolvency; the debt- or is insolvent when its liabilities exceed its assets.” 4 COLLIER ON BANKRUPTCY, ¶ 547.26, at 547-107 (15th ed. 1986). See, e.g., Briden v. Foley, 776 F.2d 379, 382 (1st Cir.1985); In re American Insulator Co., 60 B.R. 752, 753-54 (Bankr.E.D.Pa.1986) (per GOLDHABER, CH. J.); and In re Camp Rockhill, Inc., 12 B.R. 829, 833 (Bankr.E.D.Pa.1981) (per KING, J.). The critical time for measurement of the debtor’s assets and liabilities per this balance sheet test is “the time of the transfer.” 4 COLLIER, supra, at 547-110; see also, e.g., American Insulator, supra, 60 B.R. at 754; Camp Rockhill, supra, 12 B.R. at 633. The Code itself speaks directly to the issue of the relative burdens of proof of the parties for establishing insolvency: it states that “the debtor is presumed to have been insolvent on and during the ninety (90) days immediately preceding the date of the filing of the petition.” 11 U.S.C. § 547(f). In light of this provision, “a bare allegation of the debtor’s solvency” is insufficient to rebut the presumption. In re Demetralis, 57 B.R. 278, 281 (Bankr.N.D.Ill.1986). The purpose of this presumption is said to be “to simplify a trustee’s burden of proving insolvency by dispensing with the necessity of reconstructing" }, { "docid": "1483673", "title": "", "text": "were property of the Debtor or the estate within the meaning of the applicable provisions of the Bankruptcy Code. The second issue raised by this motion is whether or not the Debtor was insolvent at the time of the pre-petition transfers. For purposes of avoiding a preferential transfer, 11 U.S.C. § 547(f) creates a presumption of insolvency for the 90 days immediately preceding bankruptcy. This means that although the burden of persuasion regarding insolvency remains with the Trustee, the party against whom the presumption exists must come forward with some evidence to rebut it. National Buy-Rite, 7 B.R. at 410, 3 C.B.C.2d at 435. Kern has offered no evidence to rebut the presumption; he has merely alleged the Debt- or’s solvency, claiming, inter alia, that the Debtor owned contract rights, accounts receivable, real property and other assets in excess of its liabilities. Because of the presumption of § 547(f), it is unnecessary for the Trustee to present evidence of the Debtor’s insolvency where, as here, the creditor has not come forward with evidence of solvency. Ellenberg v. DeKalb County, Georgia (In re Maytag Sales & Service, Inc.), 23 B.R. 384, 386 (Bkrtcy.N.D.Ga.1982). Here, however, the Trustee has offered the affidavit of Berry which states that the Debtor was insolvent for at least 45 days prior to the filing of the petition, which would encompass the dates on which the pre-petition transfers were made. The Court finds that there is no genuine issue of material fact regarding the insolvency of the Debtor during the pre-petition preference period and that the Trustee is entitled to summary judgment on this point. Kern states that the Trustee has the burden of proving by a preponderance of the evidence every essential element of a preference. This is a correct statement of the law, In re Lucasa International, Ltd., 13 B.R. 596, 598 (Bkrtcy.S.D.N.Y.1981); but applies only to the pre-petition transfers, as the requirements of § 547(b) do not apply to the avoidability of the post-petition transfers. See 4 Collier on Bankr. ¶ 549.02 (15th ed. 1979). The Court finds that the Trustee has met this" }, { "docid": "23408101", "title": "", "text": "CHG International, Inc.), 897 F.2d 1479, 1486 (9th Cir.1990). The payment of interest was on account of, tied, and related to each of the underlying obligations that were plainly antecedent debts. This conclusion is consistent with Florida state law. See Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1955) [interest is “generally considered to be a part of the principal debt itself’ because it is compensation paid by a borrower to a lender for the use of money]. Accordingly, all interest payments made during the 90 days before the filing of this bankruptcy case were payments made “for or on account of’ antecedent debts within the meaning of Section 547(b)(2). e. Was the debtor insolvent at the time of the transfers? i. Presumption of insolvency. Under Section 547(f) of the Bankruptcy Code, the court presumes the debtor to be insolvent during the 90 days prior to the date of the filing of the bankruptcy petition. This presumption is not conclusive and may be rebutted by the defendants. Pembroke Development Corp. v. Window (In re Pembroke Development Corp.), 122 B.R. 610, 611-12 (Bankr.S.D.Fla.1991). The plaintiff retains the burden of persuasion on the issue of insolvency, however, and must demonstrate the debtor’s insolvency by a preponderance of the evidence if the creditor defendant successfully rebuts the presumption. Id. In this case, the defendants presented evidentiary support of the debtor’s solvency in the form of the debtor’s financial balance sheets from the period of November 1989, through February 1990. These balance sheets reflected assets that exceeded liabilities for every month during that time. In addition, the defendants presented expert testimony in the person of Morrow, who is a certified public accountant in addition to being an officer and director of the debtor and a defendant personally. Morrow testified that, in his opinion, the debtor was solvent during the period between the confirmation of Toy King I and the filing of Toy King II irrespective of whether the debtor’s inventory was valued at cost or at market value. This evidence and testimony, while ultimately not credited by the court, is sufficient to rebut" }, { "docid": "6384569", "title": "", "text": "is of the opinion that the testimony contained therein may be subject to an objection on the ground of hearsay. However, Waits has come forth with no motion to strike; therefore any such objection must be deemed waived. It must now be determined whether a gross injustice will be done if the affidavit is considered. The Court does not think so. For the purposes of 11 U.S.C. § 547, the debtor is presumed to have been insolvent 90 days immediately preceding the filing of the bankruptcy petition. 11 U.S.C. § 547(f). Although the trustee has the burden of proof on the issue of insolvency, the presumption requires the party against whom the presumption exists to come forward with evidence of solvency to rebut the presumption. In re Butler, 3 B.R. 182, 1 C.B. C.2d 533 (Bkrtcy.E.D.Tenn.1980) (Kelley, B.J.); 4 Collier on Bankruptcy (15th Edition) ¶ 547.26, 547-96. Surely no gross miscarriage of justice will occur if the Court considers evidence which merely buttresses a presumption which already exists by operation of law. Under the Bankruptcy Code insolvency continues to be determined by a “balance sheet” test. A debtor is insolvent when his liabilities exceed his assets. 11 U.S.C. § 101(26); 4 Collier on Bankruptcy. (15th Edition) ¶ 547.26, pp. 547-94. The evidence in Trustee’s affidavit indicates that Debtor’s liabilities exceeded its assets when the two payments were made to Waits. Waits has not introduced any evidence to dispute the factual assertions in the affidavit. Therefore the Court concludes that Debtor was insolvent at the time the payments were made to Waits. There is no dispute that Waits did not have a perfected security interest in Debt- or’s inventory. By receiving payments on the loan debt from Debtor just before the Debtor filed for bankruptcy, Waits was enabled to receive more than he would have received if the transfer had not been made and he received payment of his debt to the extent provided by the provisions of title 11 of the United States Code. In conclusion the Court finds that there are no genuine issues of material fact to be" }, { "docid": "16872415", "title": "", "text": "before the date of the filing of the petition; (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; 11 U.S.C. § 547(b). The parties have stipulated to all of the elements necessary to avoid the transfer of the security interest under section 547(b), except section 547(b)(3). Thus, the only issue is whether Lids was “insolvent” on October 20, 2000 (“the Valuation Date”), the date when Marathon perfected its security interest by filing financing statements with the appropriate government offices. A. “Insolvent” under the Bankruptcy Code Section 101(32)(A) of the Bankruptcy Code defines “insolvent” as the “financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation.” 11 U.S.C. § 101(32)(A). This standard for solvency is typically called the “Balance Sheet Test.” In re Trans World Airlines, Inc., 180 B.R. 389, 405 n. 22 (Bankr.D.Del.1994). However, this may be a misnomer because the Balance Sheet Test is based on a fair valuation and not based on Generally Accepted Accounting Principles (“GAAP”), which are used to prepare a typical balance sheet. Id. Several different valuation methodologies are recognized as effective ways of determining the solvency of a company for purposes of section 547. See id. at 411 n. 28. However, we will only address the methodologies applied by the parties in this case. Both parties retained experts to value Lids as of the Valuation Date. Marathon retained Houlihan Lokey Howard & Zukin (“Houlihan”), and Lids retained Ernst & Young Corporate Finance, LLC (“EYCF”). Houlihan and EYCF used several different methodologies to value Lids. B. Presumption of Insolvency and Burden of Proof Section 547(f) provides that “for the purposes of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the fifing of the petition.” 11 U.S.C. § 547(f). “A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.” Fed.R.Evid." }, { "docid": "23132684", "title": "", "text": "§ 101(11) and 101(4) respectively, the Court cannot agree that “antecedent debt” should be defined so as to exclude the payment of a “current obligation”. The latter is now covered by an express affirmative defense, pursuant to which these defendants will prevail only if they establish all four elements. Therefore, the Court concludes that the Trustee has proved the § 547(b)(2) element. Made While the Debtor was Insolvent —Insolvency is determined by the traditional balance sheet test of 11 U.S.C. § 101(26), which compares assets to liabilities. Section 547(f) provides the Trustee with a presumption of the debtor’s insolvency during the 90 days immediately preceding the bankruptcy filing. This presumption is governed by Fed.R.Evid. 301, pursuant to which the Trustee need not present evidence of the presumed fact unless the defendant first comes forward with some evidence to rebut the presumption. Emerald Oil, 695 F.2d at 838-39; Clearing House, 41 B.R. at 1011; Vasu Fabrics, 39 B.R. at 516. Rather than rest on the presumption, the Trustee put in evidence of the debtors’ financial condition at the time of the bankruptcy filings, and in April of 1981, over one year before the filings. Although the defendants questioned the accuracy of the April 1981 balance sheet, suggesting that the Trustee may have undervalued assets in existence at that time, this by itself is insufficient to constitute evidence of solvency 90 days prior to bankruptcy. Indeed, even if the Court were to add $1.4 million to the April 1981 assets as defendants suggest, the debtors would nonetheless have been insolvent at that time. Since the Trustee’s evidence shows that the debtors’ financial condition worsened over the next year by many millions of dollars, the Court has no difficulty concluding that the Trustee has established the § 547(b)(3) element. Made Within 90 Days of Bankruptcy —No defendant contested this element of the Trustee’s case. The Trustee seeks to avoid payments evidenced by checks dated no earlier than March 18, 1982. Whether the Court counts the 90 days backward from June 16, the date of the WWF and USSL filings, or forward from the" }, { "docid": "10244019", "title": "", "text": "of the estate under section 522 of this title[.] “Insolvency is essentially a balance sheet test — that is, a debtor is insolvent when the debtor’s liabilities exceed the debtor’s assets, excluding the value of preferences, fraudulent conveyances and exemptions.” In re Taubman, 160 B.R. 964, 979 (Bankr.S.D.Ohio 1993); Foreman, 59 B.R. at 149. For purposes of § 547, “the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” 11 U.S.C. § 547(f). Fed.R.Evid. 301 defines this presumption and requires the party against whom the presumption exists to come forward with evidence to-rebut the presumption, although the burden of proof remains on the party in whose favor the presumption exists. Akers v. Koubourlis (In re Koubourlis), 869 F.2d 1319, 1322 (9th Cir.1989). Thus, in the absence of evidence to rebut the presumption, the Trustee is entitled to rely on the § 547(f) presumption to establish the debt- or’s insolvency. Id. Therefore, if Citra came forward with evidence to rebut or meet the presumption, the burden of persuasion then rests with the Trustee to establish insolvency. Id. Citra, however, must demonstrate evidence of the debtor’s solvency. Id. “A speculative showing, such as simply questioning the debtor’s accounting methods, is insufficient.” Id.; see also Foreman, 59 B.R. at 149. In this proceeding, Citra has merely questioned the debtor’s accounting methods. It has not provided any evidence to meet or rebut the presumption of the debtor’s insolvency. Therefore, Citra has not rebutted the presumption of insolvency, and the Trustee has sufficiently established insolvency for purposes of § 547(b)(3). Citra also disputes that the Trustee has established the requirements under subsection (b)(5) because “[t]he checks in question were made as replacement cheeks for previously dishonored checks given” to Citra. (Doc. 17-1, p. 1). Section 547(b)(5) permits avoidance by a trustee of a transfer that enables a creditor to receive more than it would receive if the ease were a chapter 7 case and the transfer had not been made. This provision requires the bankruptcy court to “construct a ‘hypothetical chapter" }, { "docid": "4097348", "title": "", "text": "going forward with evidence of solvency to meet or rebut the statutory presumption. In re Almarc Mfg. Inc., 60 B.R. 584, 585 (Bankr.N.D.Ill.1986); Matter of Georgia Steel, Inc., 58 B.R. 153, 156 (Bankr.M.D.Ga.1984); Matter of Brooks, 44 B.R. 963 965 (Bankr.S.D.Ohio 1984). If the evidence presented is sufficient to rebut the § 547(f) presumption, the party seeking to avoid the transfer must meet the burden of proof imposed by § 547(g) without the aid of the statutory presumption of insolvency. In re Almarc Mfg. Inc., supra at 586; In re Alithochrome Corp., 53 B.R. 906, 912 (Bankr.S.D.N.Y.1985). In a preference action, the burden of proof is on the moving party to prove all elements by a preponderance of the evidence. 4 Collier on Bankruptcy § 547.21[5] at 547-85 (15th Ed.1987); In re Alithochrome, supra at 909; In re Hillcrest Foods, Inc., 40 B.R. 360, 362 (Bankr.D.Me.1984); In re Vasu Fabrics, Inc., 39 B.R. 513 515 (Bankr.S.D.N.Y.1984). But see In re Ace Finance Co., 64 B.R. 688, 693 (Bankr.N.D.Ohio 1986) (burden of persuasion is on Movant to prove insolvency by “clear and convincing” evidence). In the present case, the Defendant has moved for Summary Judgment based on the Debtor’s schedules and balance sheet. However, this Court, and many others, have held that the values stated in the Petition are not determinative. In re W.L. Mead, Inc., 70 B.R. 651, 655 (Bankr.N.D.Ohio 1986); In re Ace Finance Co., supra; Matter of Georgia Steel, Inc., supra at 156; In re Zuni, 6 B.R. 449, 451 (Bankr.D.N.M.1980). As stated in In re Southern Industrial Banking, 71 B.R. 351, 356 (Bankr.E.D.Tenn.1987): “In applying the Bankruptcy Code definition of insolvency, the Court must make a factual finding as to whether assets at fair valuation exceed debts.” In making its factual finding as to the “fair valuation” of the Debtor’s assets, the Court will measure the “fair valuation” based upon a hypothetical liquidation of the Debtor’s assets over a reasonable period of time. In re Southern Industrial Banking, supra at 357. This criteria is different than the one proposed by the Defendant, which would require the Court" }, { "docid": "23177737", "title": "", "text": "to Totten? STANDARD OF REVIEW A determination of insolvency under section 547 is a finding of fact. E.g., Clay v. Traders Bank of Kansas City, 708 F.2d 1347, 1350 (8th Cir.1983). Findings of fact will not be reversed unless clearly erroneous. Bankruptcy Rule 8013. A finding is clearly erroneous if, after a review of the record, the Panel is left with a definite and firm conviction that error has been committed. In re Burkhart, 84 B.R. 658, 660 (9th Cir.BAP 1988). The appellant has the burden of showing that a bankruptcy court’s findings of fact are clearly erroneous. Id. Similarly, the appellant has the responsibility to file an adequate record on appeal. Id. DISCUSSION a. Insolvency in general under section 547. In order to prevail on a preference claim, the trustee or debtor-in-possession must establish that the transfer was made while the debtor was insolvent. Section 547(b)(3). Under Section 101(31) insolvent means “financial condition such that the sum of [an] entity’s debts is greater than all of [an] entity’s property, at a fair valuation, exclusive of ...” property that may be exempted and property that has been fraudulently concealed or transferred. Thus, under this “balance sheet” test a debtor is insolvent when its liabilities exceed its assets. The “debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” Section 547(f). This presumption does not shift the ultimate burden of proof, rather it merely shifts the initial burden of going forward with the evidence. 4 Collier on Bankruptcy ¶ 547.06 (15th Ed.1988). Once the transferee comes forward with substantial evidence of solvency, the presumption vanishes and the plaintiff must come forward with sufficient evidence in order to meets its burden of proving insolvency. See Russell, Bankruptcy Evidence Manuel, § 301.3 (West 1987); see also In re Candor Diamond Corp., 68 B.R. 588, 590-591 (Bankr.S.D.N.Y.1986); 4 Collier on Bankruptcy ¶ 547.06. In this case, the bankruptcy court found the debtor’s initial schedules, which testimony established were accurate when prepared and which showed assets of $4,304,-148.21 and liabilities of $2,489,827.56," }, { "docid": "4097347", "title": "", "text": "The Plaintiff-Debtor argues against Defendant’s Motion for Summary Judgment because the question of “fair valuation” presents an issue of material fact which cannot be resolved by merely examining Lawrence & Erausquin’s schedules, or their balance sheet. LAW Summary Judgment is properly granted when the Movant can demonstrate that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law. See, Bankruptcy Rule 7056 and Fed.R.Civ.P. 56. However, Mov-ant must be able to demonstrate all the elements of a cause of action in order to prevail. In re Hartwig Poultry, Inc., 57 B.R. 549, 551 (Bankr.N.D.Ohio 1986). A Motion for Summary Judgment must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253 (Bankr.N.D.Ohio 1987). Under 11 U.S.C. § 547(f), the Debtor is presumed to have been insolvent in and during the ninety (90) days immediately preceding the date of the filing of the petition. This presumption is rebuttable. It simply imposes on the transferee the burden of going forward with evidence of solvency to meet or rebut the statutory presumption. In re Almarc Mfg. Inc., 60 B.R. 584, 585 (Bankr.N.D.Ill.1986); Matter of Georgia Steel, Inc., 58 B.R. 153, 156 (Bankr.M.D.Ga.1984); Matter of Brooks, 44 B.R. 963 965 (Bankr.S.D.Ohio 1984). If the evidence presented is sufficient to rebut the § 547(f) presumption, the party seeking to avoid the transfer must meet the burden of proof imposed by § 547(g) without the aid of the statutory presumption of insolvency. In re Almarc Mfg. Inc., supra at 586; In re Alithochrome Corp., 53 B.R. 906, 912 (Bankr.S.D.N.Y.1985). In a preference action, the burden of proof is on the moving party to prove all elements by a preponderance of the evidence. 4 Collier on Bankruptcy § 547.21[5] at 547-85 (15th Ed.1987); In re Alithochrome, supra at 909; In re Hillcrest Foods, Inc., 40 B.R. 360, 362 (Bankr.D.Me.1984); In re Vasu Fabrics, Inc., 39 B.R. 513 515 (Bankr.S.D.N.Y.1984). But see In re Ace Finance Co., 64 B.R. 688, 693 (Bankr.N.D.Ohio 1986) (burden of persuasion is on Movant" }, { "docid": "13072709", "title": "", "text": "against whom the action is directed “to come ‘forward with evidence to rebut or meet the presumption.’ ” In re Emerald Oil Co., 695 F.2d 833, 838 (5th Cir.1983) (quoting Fed.R.Evid. 301) (holding that creditor did not rebut presumption of insolvency during 90-day period prior to bankruptcy where debtor rested on presumption and creditor presented a C.P.A. who testified that it was possible debtor’s assets exceeded its liabilities). Moreover, “mere speculative evidence ... is not enough.” Gasmark Liquidating Trust v. Louis Dreyfus Natural Gas Corp., 158 F.3d 312, 315 (5th Cir.1998). V. WRT’S ASSETS AND LIABILITIES A. The Law. To determine if an entity is insolvent for purposes of avoiding a fraudulent conveyance, courts must utilize the balance sheet test under section 101(32), evaluating whether the entity’s “financial condition [is] such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation ...,” exclusive of property fraudulently transferred. Section 101(32); see section 548(a)(1)(B). This test is “the traditional bankruptcy balance sheet test of insolvency.” H.R. No. 100-11,100th Cong.2d Sess. 5-6 (1988). The relevant solvency valuation date for avoidance purposes is the date of the challenged transfer. See, e.g., Harvey v. Orix Credit Alliance, Inc. (In re Lamar Haddox Contractor, Inc.), 40 F.3d 118, 121 (5th Cir.1994); In re Sullivan, 161 B.R. 776, 783 (Bankr.N.D.Tex.1993) (stating that the “Court may find insolvency if the plaintiff shows the debtor was insolvent ‘proximately before or immediately after the transfer’ ”; insolvency established by showing debtor was insolvent six months before and after transfer). Courts generally conduct a two-step analysis to determine whether a debt- or is insolvent under the balance sheet test. Union Bank of Switzerland v. Deutsche Financial Services Corp., 2000 WL 178278, at *9 (S.D.N.Y. February 16, 2000) (citing In re Taxman Clothing Co., 905 F.2d 166, 169-70 (7th Cir.1990)). First, the court determines whether it is proper to value the debtor’s assets on a “going concern” basis or a “liquidation” basis. Second, the court conducts a “fair valuation” and assigns a value to all the debtor’s assets and liabilities as of the" }, { "docid": "10244018", "title": "", "text": "in the debtor’s balance sheet. Specifically, Citra states that the “Loan Payable Stockholder should be included in shareholder equity in determining whether or not the company was solvent at the time of the transfers,” that “net book value is an accounting fiction which does not under most circumstances equal the actual value of the assets,” that “there is no asset valuation for the ‘going-concern value’ of the company,” and that the “Accounts Payable Trade includes one and one-half to two percent service charges for past due accounts, a charge which if not in writing, is not a proper charge.” (Doc. 17-1, p. 2). Section 101(32)(a) defines insolvent as follows: “Insolvent” means — - (A) with reference to an entity other than a partnership, and a municipality, financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation, exclusive of— (i) property transferred, concealed, or removed with intent to hinder, delay, or defraud such entity’s creditors; and (ii) property that may be exempted from property of the estate under section 522 of this title[.] “Insolvency is essentially a balance sheet test — that is, a debtor is insolvent when the debtor’s liabilities exceed the debtor’s assets, excluding the value of preferences, fraudulent conveyances and exemptions.” In re Taubman, 160 B.R. 964, 979 (Bankr.S.D.Ohio 1993); Foreman, 59 B.R. at 149. For purposes of § 547, “the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” 11 U.S.C. § 547(f). Fed.R.Evid. 301 defines this presumption and requires the party against whom the presumption exists to come forward with evidence to-rebut the presumption, although the burden of proof remains on the party in whose favor the presumption exists. Akers v. Koubourlis (In re Koubourlis), 869 F.2d 1319, 1322 (9th Cir.1989). Thus, in the absence of evidence to rebut the presumption, the Trustee is entitled to rely on the § 547(f) presumption to establish the debt- or’s insolvency. Id. Therefore, if Citra came forward with evidence to rebut or meet" }, { "docid": "13798872", "title": "", "text": "whether the creditor is entitled to any offsets. INSOLVENCY: Edison maintains that the Trustee did not establish the debtor’s insolvency within the ninety days preceding the filing. 11 U.S.C. Section 547(f) creates a presumption that the debtor was insolvent during this period. The purpose of the presumption is to simplify a trustee’s burden of proving insolvency by dispensing with the necessity of reconstructing debtor’s financial condition. L. King, 4 Collier on Bankruptcy, Par. 547(5) at 547-24 (15th ed. 1982). The legislative history reveals that the presumption is governed by the Federal Rules of Evidence, Rule 301, requiring the party against whom the presumption applies to come forward with evidence to meet or rebut it. In Re Emerald Oil Co., 695 F.2d 833 (5th Cir.1983). Insolvency, as defined in 11 U.S.C. Section 101(26), means the sum of one’s debts exceeds his property. This traditional balance sheet test of insolvency examines the value of assets compared with liabilities, and does not consider whether one is able to pay debts as they accrue. See In Re Arrowhead Gardens, Inc., 32 B.R. 296, 299 (Bkrtcy.D.Mass.1983). In this ease, the debtor rested on this presumption. The sole evidence Edison points to in rebuttal is testimony that Key-data was current in its bills, which is not evidence of insolvency. There was no evidence on the value of Keydata’s assets or amount of its liabilities during the relevant period, and there was no evidence that its liabilities exceeded its assets. In the absence of evidence to meet or rebut the presumption, the debtor was entitled to rely on the presumption of insolvency. CONTEMPORANEOUS EXCHANGES: Edison argues that the four payments were not in payment of antecedent debt but were made to assure continuance of electricity. An exception to the voidability of preferences is contained in 11 U.S.C. Section 547(c)(1) which legitimizes any transfer made as a “contemporaneous exchange for new value given to the debtor.” “New value” means “money or money’s worth in goods, services or new credit ... but does not include an obligation.” 11 U.S.C. Section 547(a)(2). Replenishment of a line of credit on an" }, { "docid": "10544445", "title": "", "text": "does not dispute that the transfers to him and his wife were for the benefit of a creditor on account of an antecedent debt or that they were made within 90 days of the petition. Rather, Appellant argues that a genuine issue of material fact exists as to whether the Debtor was insolvent at the time of the transfers. In addition, Appellant argues that the Debtor failed to present evidence of a hypothetical liquidation and, thus, cannot prevail on its motion for summary judgement. Finally, Appellant argues that the transfers to him and his wife fall within the ordinary course of business exception to § 547. a. Whether a question of fact existed as to the Debtor’s insolvency. 11 U.S.C. § 547(f) creates a presumption of insolvency during the 90 days preceding the filing of a bankruptcy petition. That presumption, as mandated by Federal Rule of Evidence 301, (made applicable in bankruptcy proceedings by Bankruptcy Rule 9017) “requires the party against whom the presumption is made to come forward with some evidence to rebut the presumption, but the burden of proof remains on the party in whose favor the presumption exists.” H.Rep. No. 95-595, 95th Cong. 1st Sess. 375 (1977), 1978 U.S.Code Cong. & Admin.News 5787, 6331. See also 4 L. King, Collier on Bankruptcy, ¶ 547.06 at 547-36, n. 5 (15th Ed.1988). Insolvency, as defined in 11 U.S.C. § 101(31), means that the sum of a debtor’s liabilities exceeds the sum of its assets. “A creditor wishing to overcome the presumption of insolvency must provide the court with ‘evidence sufficient to cast into doubt the statutory presumption of insolvency ... ’ ” In re World Financial Services Center, Inc., 78 B.R. 239, 241 (9th Cir. BAP 1987) (quoting In re Emerald Oil Co., 695 F.2d 833, 838 (5th Cir.1983)). Under this requirement, “the mere assertion that the debtor is solvent will not suffice” to overcome the presumption. World Financial, 78 B.R. at 239. Accordingly, in World Financial we held that the transferee had not overcome the insolvency presumption where the only evidence available on the debtor’s solvency was a" }, { "docid": "15415542", "title": "", "text": "that it would have if the ease were under Chapter 7. We conclude that the district judge did not err in granting the trustee summary judgment. Insolvency is a “financial condition such that the sum of [the] entity’s debts is greater than all of [its] property, at a fair valuation....” 11 U.S.C.A. § 101(32)(1993). A debtor is presumed insolvent on and during the 90 days before filing for bankruptcy. See 11 U.S.C.A. § 547(f) (1993). “[A] presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion_” Fed.R.Evid. 301. The party seeking to rebut the presumption must introduce some evidence to show that the debtor was solvent at the time of the transfer; mere speculative evidence of solvency is not enough. See Sandoz v. Fred Wilson Drilling Co. (In the Matter of Emerald Oil Co.), 695 F.2d 833, 839 (5th Cir.1983) (emphasis added). Summary judgment in favor of the trustee is appropriate when the party seeking to rebut the presumption fails, see id. at 834-39 (affirming summary judgment in an avoidance of preference case based solely on the presumption), or when there is no genuine issue of material fact concerning insolvency and the trustee is entitled to judgment as a matter of law, see R. Bankr.P. 7056; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To avoid summary judgment in this case, LDNG must raise a genuine issue of material fact concerning whether it rebutted the presumption. Aso, since the trustee provided affirmative evidence of insolvency and did not rely only on the presumption, LDNG must raise a genuine issue of material fact concerning GasMark’s insolvency. The trustee submitted affirmative evidence of insolvency. Certified Public Accountant (“CPA”) Loretta Cross affirmed that on the date of GasMark’s payment to LDNG, GasMark’s balance sheet, at fair valuation, showed $24,514,000 in assets and $41,-528,000 in liabilities, creating a $17,014,000 deficit. LDNG objects to the trustee’s" }, { "docid": "13072708", "title": "", "text": "of the evidence.”); Boise Cascade Corp. v. Dean, 767 So.2d 76, 87 (La.Ct.App.2000) (in a civil matter “a plaintiff must prove each element of his case by a mere preponderance of the evidence”). The burden of showing something by a preponderance of the evidence “simply requires the trier of fact to believe that the existence of the fact is more probable than its nonexistence ...” Concrete Pipe and Prod. of Cal. v. Construction Laborers Pension Trust, 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); Sandoval v. Hagan, 7 F.Supp.2d 1234 (M.D.Ala.1998) (preponderance of the evidence merely means that the evidence must demonstrate that what is sought to be proved is more likely true than not true). The Trust may meet its burden by expert testimony, financial statements, public documents, appraisals, or a combination of these. See, e.g., Traina v. Blanchard (In re Mayer), 1999 WL 777758 (E.D.La. Sept.29, 1999). The burden of proof remains on the Trust as to any element to which there is a presumption. However, a presumption requires the party against whom the action is directed “to come ‘forward with evidence to rebut or meet the presumption.’ ” In re Emerald Oil Co., 695 F.2d 833, 838 (5th Cir.1983) (quoting Fed.R.Evid. 301) (holding that creditor did not rebut presumption of insolvency during 90-day period prior to bankruptcy where debtor rested on presumption and creditor presented a C.P.A. who testified that it was possible debtor’s assets exceeded its liabilities). Moreover, “mere speculative evidence ... is not enough.” Gasmark Liquidating Trust v. Louis Dreyfus Natural Gas Corp., 158 F.3d 312, 315 (5th Cir.1998). V. WRT’S ASSETS AND LIABILITIES A. The Law. To determine if an entity is insolvent for purposes of avoiding a fraudulent conveyance, courts must utilize the balance sheet test under section 101(32), evaluating whether the entity’s “financial condition [is] such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation ...,” exclusive of property fraudulently transferred. Section 101(32); see section 548(a)(1)(B). This test is “the traditional bankruptcy balance sheet test of insolvency.” H.R. No. 100-11,100th" } ]

[ { "docid": "53103", "title": "", "text": "Apprendi. See Nordby, 225 F.3d at 1058. Contrary to the government’s arguments in its brief and at oral argument, this case is not governed by McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the Supreme Court considered Pennsylvania’s Mandatory Minimum Sentencing Act (“MMSA”). The MMSA provided that anyone convicted of certain enumerated felonies would be subject to a mandatory minimum sentence of five years if the judge found, by a preponderance of evidence, that the defendant visibly possessed a firearm during the commission of the offense. Id. at 81, 106 S.Ct. 2411. Critically, under the MMSA, the judge’s determination that the defendant visibly possessed a firearm did not increase the maximum punishment to which the defendant was subject under any of the enumerated felony statutes. Id. Rather, a finding of visible possession of a firearm merely “limitfed] the sentencing court’s discretion in selecting a penalty within the range already available to it...\" Id. at 88, 106 S.Ct. 2411. The Court found this scheme constitutionally permissible because it only “operates to divest the judge of discretion to impose any sentence of less than five years for the underlying felony; it does not authorize a sentence in excess of that otherwise allowed for that offense.” Id. at 81-82, 106 S.Ct. 2411. The federal drug statute operates differently than the MMSA. See 21 U.S.C. § 841 et seq. Unlike a finding of visible firearm possession under the MMSA, a finding of drug quantity increases the statutory maximum punishment to which a defendant is subject. See 21 U.S.C. § 841(b)(1)(A)-(D). Indeed, the instant case starkly demonstrates how the finding of drug quantity can increase the potential statutory maximum punishment — Judge Gonzalez’s determination that Velasco-Heredia was responsible for 285 kilograms of marijuana, instead of only seventeen kilograms, increased the statutory maximum punishment from five to forty years. Compare 21 U.S.C. § 841(b)(1)(D) (five years) with 21 U.S.C. § 841(b)(1)(B) (forty years). Because Judge Gonzalez’s finding as to drug quantity exposed Velasco-Heredia to a greater statutory maximum punishment, and did not merely limit her sentencing discretion within a" } ]

[ { "docid": "22569519", "title": "", "text": "of the evidence. Section 841(b)(1)(A) provides the maximum penalty for infractions involving 1000 or more marijuana plants is life imprisonment. Therefore, having found the threshold amount, the judge had a range of ten years to life within which he could sentence Leachman. The judge exercised his discretion and sentenced Leachman only to the minimum ten years. Leachman alleges that the judge erred, under Apprendi, in calculating his mandatory minimum sentence because the judge impermissibly considered an amount of drugs never proved to a jury beyond a reasonable doubt. Leachman relies on the precedent of this Court and reads Appren-di and its progeny as declaring an absolute ban on enhancing a defendant’s mandatory mimmurn sentence based on facts proved only by a preponderance of the evidence. Accordingly, he has extended Apprendi beyond enhancements of the statutory maximum to enhancements of the statutory minimum as well. IV. Apprendi and Harris In Apprendi, the Supreme Court held that “[o]ther than a fact of 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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). However, the Apprendi majority also stated that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348 citing Jones v. U.S., 526 U.S.227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (emphasis added). While this statement cast some doubt on the belief that Appren-di was intended to apply only to enhancements of maximum penalties, the majority also expressly stated it was not overruling McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which upheld a state statute allowing judges to find minimum penalty enhancement factors by a preponderance of the evidence. Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Accordingly, it was unclear whether Ap-prendi" }, { "docid": "23053061", "title": "", "text": "to it; rather, it empowers a court to consider a sentence of up to life imprisonment. In addition, § 841(b)(1)(A) is itself a separate offense, which calls for a penalty separate from § 841(b)(1)(C). See Flowal, 234 F.3d at 938 (quoting Apprendi, 530 U.S. at 501, 120 S.Ct. 2348) (Thomas, J., concurring). The Ninth Circuit has similarly distinguished McMillan from § 841(b). See United States v. Velasco-Heredia, 249 F.3d 963, 968 (9th Cir.2001). Moreover, Apprendi “reservefd] for another day” the question of whether stare decisis considerations precluded full reconsideration of McMillan. Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Thus, I would find, under the Flowal line of cases, that Ap-prendi requirements apply to defendant’s possession of crack in this case, notwithstanding McMillan and Garcia. Unlike the majority, I would not apply United States v. Pruitt, 156 F.3d 638, 648 (6th Cir.1998), to establish that defendant expressly admitted, by failing to object to the findings of the presentence report, that the cocaine involved was crack. The indictment in Pruitt, as well as the indictments in the case relied on by Pruitt, United States v. Nesbitt, 90 F.3d 164 (6th Cir.1996), included specific drug quantities and/or types. The indictment in this case included neither drug quantity nor drug type, failing to reference “crack”, or even '“cocaine base”. Because defendant was only charged with possessing an undetermined amount of cocaine, I would not infer from defendant’s failure to object to the findings of .the presentence report that defendant “ ‘expressly agreed that he should be held accountable’ ” for 235.42 grams of crack. Pruitt, 156 F.3d at 648 (quoting Nesbitt, 90 F.3d at 168). Accordingly, because the presentence report does not resolve the reasonable doubt issue in this case, I would find an Apprendi error under Strayhorn, Ramirez and Flowal. In addition, I would not apply United States v. Duarte, 246 F.3d 56, 62 (1st Cir.2001), to the substantial rights analysis in this case. Defendant’s sentence in Duarte, unlike this case, exceeded the default statutory maximum. Duarte, 246 F.3d at 59. Nevertheless, the court in Duarte found that “the proof" }, { "docid": "23053060", "title": "", "text": "felonies. McMillan, 477 U.S. at 81, 106 S.Ct. 2411. Apprendi limited McMillan “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. I would not find the Flowal line of cases invalid under McMillan simply because of McMillan's own self-imposed limitations, which were referenced in Apprendi: McMillan limited itself to a state statutory scheme that “ ‘neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty; [instead, the scheme] operate[d] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it[.]’ ” Apprendi, 530 U.S. at 486, 120 S.Ct. 2348 (quoting McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411). Thus, unlike McMillan, exposing a defendant to § 841(b)(1)(A) does more than limit a sentencing court’s discretion in selecting a penalty within the range already available to it; rather, it empowers a court to consider a sentence of up to life imprisonment. In addition, § 841(b)(1)(A) is itself a separate offense, which calls for a penalty separate from § 841(b)(1)(C). See Flowal, 234 F.3d at 938 (quoting Apprendi, 530 U.S. at 501, 120 S.Ct. 2348) (Thomas, J., concurring). The Ninth Circuit has similarly distinguished McMillan from § 841(b). See United States v. Velasco-Heredia, 249 F.3d 963, 968 (9th Cir.2001). Moreover, Apprendi “reservefd] for another day” the question of whether stare decisis considerations precluded full reconsideration of McMillan. Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Thus, I would find, under the Flowal line of cases, that Ap-prendi requirements apply to defendant’s possession of crack in this case, notwithstanding McMillan and Garcia. Unlike the majority, I would not apply United States v. Pruitt, 156 F.3d 638, 648 (6th Cir.1998), to establish that defendant expressly admitted, by failing to object to the findings of the presentence report, that the cocaine involved was crack. The indictment in Pruitt, as well as the" }, { "docid": "23053059", "title": "", "text": "Sixth, and Fourteenth Amendment rights under Apprendi. Such reasoning implies that a judge’s decision to impose a sentence greater than the statutory minimum is also a decision to halt operation of a defendant’s constitutional rights under Apprendi. Regardless, under Strayhom and Flowal, Apprendi requirements apply to a defendant who, as in this case, was deprived of the opportunity to receive less than the mandatory minimum sentence under § 841(b)(1)(A), the applicable sentencing range determined by the factual finding of crack. Therefore, the existence of crack as an element of the offense must be proven beyond a reasonable doubt. The majority also questions the Flowal line of cases by citing United States v. Hill, 252 F.3d 919 (7th Cir.2001), which criticized Flowal and its progeny in light of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan upheld a state statute that exposed defendants to a mandatory minimum sentence upon the finding, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” during the commission of certain enumerated felonies. McMillan, 477 U.S. at 81, 106 S.Ct. 2411. Apprendi limited McMillan “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. I would not find the Flowal line of cases invalid under McMillan simply because of McMillan's own self-imposed limitations, which were referenced in Apprendi: McMillan limited itself to a state statutory scheme that “ ‘neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty; [instead, the scheme] operate[d] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it[.]’ ” Apprendi, 530 U.S. at 486, 120 S.Ct. 2348 (quoting McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411). Thus, unlike McMillan, exposing a defendant to § 841(b)(1)(A) does more than limit a sentencing court’s discretion in selecting a penalty within the range already available" }, { "docid": "6964867", "title": "", "text": "should apply if the recidivist issue were contested.” Id. Second, the Court made clear that it was not suggesting “that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment tuithin the range prescribed by statute.” Id. at 481, 120 S.Ct. 2348. In so doing, Apprendi expressly preserved the holding of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), that sentencing factors that determine where a defendant’s sentence falls within a statutory maximum need not be proven to a jury. Apprendi, 530 U.S. at 487 n. 13, 494 & n. 19, 120 S.Ct. 2348. Indeed, the Court suggested that it would be permissible for a legislature to set a crime’s maximum sentence at, “for example, 50 years and [to] giv[e] judges guided discretion as to a few specially selected factors within that range.” Id. at 490 n. 16, 120 S.Ct. 2348. Apprendi did not address the interpretation or constitutionality of § 841. Ap-prendi itself involved two “separate statute[s].” Id. at 468-69, 120 S.Ct. 2348. One fixed a 10-year maximum sentence for possessing a firearm for an unlawful purpose. The other — the hate crime law— increased the maximum sentence for any crime (with certain exceptions) where a judge found by a preponderance of the evidence that the defendant committed the offense out of racial bias. Id. Section 841, by contrast, is a single statute with two subsections. One subsection, § 841(a), is entitled “Unlawful acts” and specifies that it is unlawful to knowingly or intentionally distribute a controlled substance. The other, § 841(b), is entitled “Penalties” and specifies three categories of sentences for “any person who violates subsection (a).” See § 841(h)(1)(A), (B), (C). Following the logic of Apprendi, if § 841 were interpreted as a unitary statute — establishing a single crime with a statutory maximum of life in prison and three sen tencing factors dependent upon drug quantity — then drug quantity in a particular case may be decided by a judge. However, if § 841 were interpreted" }, { "docid": "23588394", "title": "", "text": "defendant “ ‘visibly possessed a firearm.’ ” 477 U.S. at 81, 106 S.Ct. 2411. Because the statute “neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty,” id. at 87-88, 106 S.Ct. 2411, the Court reasoned that the statute merely “limit[ed] the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm,” id. at 88, 106 S.Ct. 2411. Thus, the statute merely raised the minimum sentence that could be imposed within the permissible statutory range; it was not “tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. In Apprendi, however, the Court held that the imposition of a sentence in excess of a maximum statutory sentence allowable for an offense, based upon a separate statute allowing for the increase if the sentencing court determined by a preponderance of the evidence that the offense was committed with a racially biased purpose, did violate the defendant’s due process rights. Specifically, the Court held that “[o]ther 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.” Id. at 490, 120 S.Ct. 2348 (emphasis added). But, contrary to Appellants’ assertion that Apprendi effectively strips McMillan of any meaningful vitality and counsels that we require all facts that expose a defendant to a sentencing range, whether by statute or by the guidelines, to be prov en to a jury beyond a reasonable doubt, the Apprendi Court expressly noted that McMillan remains good law, albeit limited to cases “that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” • Apprendi 530. U.S. at 487 n. 13, 120 S.Ct. 2348; see also id. at 495, 120 S.Ct. 2348 (“When a judge’s finding based on a mere preponderance of" }, { "docid": "23053056", "title": "", "text": "it was \"constrained by a specific statute to impose the sentence it did.” Garcia, supra, 252 F.3d at 843. Under Garcia, our latest word on the subject, Defendant's sentence does not run afoul of Apprendi, because it is both below the 20-year statutory maximum established by the \"catchall” provision at § 841(b)(1)(C), and above the 10 year statutory minimum found at § 841(b)(1)(A). CLAY, Circuit Judge, concurring. I agree that the district court’s enhancement of defendant’s sentence for crack cocaine should be affirmed. The deficient indictment in this case, however, warrants closer scrutiny of applicable precedent and fuller analysis under the elements of plain error review. On plain error review, this Court may reverse a decision only if there is an (1) error, (2) that is plain, (3) that affects substantial rights. United States v. Page, 232 F.3d 536, 543 (6th Cir.2000). I would find that defendant’s Apprendi claim satisfies the first two elements of plain error analysis, i.e., that the district court committed an error that was plain. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A factual finding that a conviction under 21 U.S.C. § 841(a)(1) involved crack, which exposes a defendant to a higher sentencing range under § 841(b), triggers Apprendi requirements. See United States v. Strayhorn, 250 F.3d 462, 470-71 (6th Cir.2001); United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2001); United States v. Flo wal, 234 F.3d 932, 936 (6th Cir.2000). Thus, Apprendi requires that defendant’s possession of crack in this case be proven beyond a reasonable doubt. The majority contends that the Flowal line of cases has been limited by United States v. Garcia, 252 F.3d 838 (6th Cir.2001). Garcia found that exposure to a higher sentencing range under Ramirez triggers Apprendi requirements only when the actual sentence is “at the bottom of the higher statutory range,” which would indicate that the sentencing judge felt constrained when sentencing under the mandatory higher range. Garcia, 252 F.3d at 843-44. I do not read Strayhom, Ramirez, Flowal, and Apprendi as establishing, as Garcia found, that Apprendi safeguards reach" }, { "docid": "22808352", "title": "", "text": "twenty-year maximum of 841(b)(1)(C); and, second, that Apprendi preserved McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and the use of mandatory minimum sentences. The opinion’s first reason that Apprendi is not violated unless the sentence surpasses the twenty-year maximum, does nothing to advance the majority’s argument because the Rogers ’ error is one independent of Apprendi. As the majority concedes, in cases tried to a jury Rogers requires drug quantity to be alleged in the indictment and proven to a jury beyond a reasonable doubt if the district court utilizes either section 841(b)(1)(A) or 841(b)(1)(B) in sentencing. I assert, then, that Camacho simply holds that a district court necessarily used section 841(b)(1)(A) or 841(b)(1)(B) in sentencing if the court allowed the mandatory minimum to constrain its sentencing discretion under the guidelines. This reasoning, moreover, is completely consistent with Apprendi's preservation of McMillan, in which the Supreme Court held that mandatory mínimums may be imposed based on facts found by a judge by a preponderance of the evidence. See Ap-prendi v. New Jersey, 530 U.S. 466, 487 n. 13, 120 S.Ct. 2348, 2361 n. 13, 147 L.Ed.2d 435 (2000). Camacho itself recognized that the district court’s use of the mandatory minimum of section 841(b)(1)(A) did not violate Apprendi or McMillan. See Camacho, 248 F.3d at 1289 n. 5. Camacho went on to explain, however, that sentencing the defendant to the mandatory minimum of that section necessarily meant that it was utilizing that section for sentencing. See id. at 1289. This, we held, violated Rogers ’ mantra that when section 841(b)(1)(A) or (B) is used, drug quantity must be alleged in the indictment and proven to a jury beyond a reasonable doubt. . I also join the court's conclusion that Ap-prendi error is not structural, and our cases have already held as much. See United States v. Nealy, 232 F.3d 825, 829 & n. 4 (2000) (holding that \"Apprendi did not recognize or create a structural error that would require per se reversal.” and further noting that \"Structural error occurs only in the rare instance involving" }, { "docid": "2017995", "title": "", "text": "EASTERBROOK, Circuit Judge. Cordell James and Nathan Hill have been sentenced to life imprisonment. James, who was convicted of a single count of conspiring to distribute drugs, see 21 U.S.C. § 846, drew his sentence because of a combination of his criminal record, the scale of the operation (more than a ton of cocaine), and his participation in the murder of Robert Franklin. Hill received a life sentence (and a fine exceeding $8 million) for operating a continuing criminal enterprise, among other crimes. See 21 U.S.C. § 848. 1. Both defendants contend that their sentences violate the due process clause because the jury did not conclude that the evidence establishes beyond a reasonable doubt the events that led to the life terms. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But Apprendi does not help Hill, because the maximum sentence for every person convicted of violating § 848 is life. He insists that Apprendi governs proof of events that determine the minimum lawful sentence, but we rejected that contention in United States v. Smith, 223 F.3d 554, 562-66 (7th Cir.2000). Although United States v. Flowal, 234 F.3d 932, 936-38 (6th Cir.2000), is at odds with Smith (of which the sixth circuit apparently was unaware), we have previously declined to reconsider the holding of Smith and do not find in Flowal any reason to do so. See United States v. Hoover, 246 F.3d 1054, 1058 (7th Cir.2001); United States v. Williams, 238 F.3d 871, 876-77 (7th Cir.2001). Flowal does not discuss McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which held that judges may find, by a preponderance, facts that trigger mandatory minimum penalties. Apprendi did not overrule McMillan, see 530 U.S. at 487 n. 13, 120 S.Ct. 2348, yet, unless McMillan is to be discarded, Flowal and its successors, see United States v. Ramirez, 242 F.3d 348 (6th Cir.2001); United States v. Strawhorn, 250 F.3d 462 (6th Cir.2001), cannot be correct. The sixth circuit is a minority of one, while Smith has the support of at least four" }, { "docid": "23629263", "title": "", "text": "charged in the indictment and proved beyond a reasonable doubt at trial. “Whether a fact is an offense element or a sentencing consideration is a matter of statutory interpretation.” United States v. Davis, 184 F.3d 366, 368 (4th Cir.1999). Thus, we look to the statute’s language, structure, context, and history in determining whether “brandished” is a sentencing factor. See Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 2092, 147 L.Ed.2d 94 (2000). Most significant in determining whether the brandishing clause sets forth a sentencing factor or an element of the crime is the statutory language itself. Section 924(c)(l)(A)(ii) provides for no statutory maximum sentence. Instead the statute “operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of [brandishing] a firearm.” McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In other words, the sentencing court’s finding that Harris “brandished” a firearm under subsection (ii) triggered a mandatory minimum sentence, but did not “increase[ ] the penalty ... beyond the prescribed statutory maximum.” Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). In McMillan, the Supreme Court upheld Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa. Cons.Stat. § 9712 (1982), which provided a mandatory minimum sentence of five years upon a finding that a defendant “visibly possessed a firearm” during the commission of certain felonies. McMillan, 477 U.S. at 80-81, 106 S.Ct. 2411. The Court rejected the contention that the visible possession provision was an element of the offense because it did not “exposeD [the defendants] to greater or additional punishment.” Id. at 88, 106 S.Ct. 2411. The Court explained that the challenged statute “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.... The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. at 87-88, 106 S.Ct. 2411. Consequently, the McMillan Court held that the mandatory minimum" }, { "docid": "23365341", "title": "", "text": "beyond a reasonable doubt. Keith’s sentence of twenty year’s obviously does not exceed the statutory maximum sentence of thirty years under § 841(b)(1)(C). On its face then, Apprendi is not authority for invalidating Keith’s sentence. See Doggett, 230 F.3d at 166. Keith nevertheless argues that because subsection (C) of § 841(b)(1) applies in the absence of an allegation and jury finding of drug quantity, the district court could not impose the statutory minimum sentence of twenty year's under § 841(b)(1)(A) based on a non-jury determination of drug quantity. We disagree. Although Doggett involved a Sentencing Guidelines enhancement, its reasoning and its holding apply with equal force to a statutory minimum sentence. In McMillan v. Pennsylvania, 477 U.S. 79, 81, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Court found constitutional a statute that imposed a mandatory minimum sentence for a defendant who is convicted of specified felonies when a judge finds by a preponderance of the evidence that the defendant “ ‘visibly possessed a firearm.’ ” The Court reasoned that the statute neither increased the maximum penalty nor created a separate offense calling for a separate penalty. Id. at 87-88, 106 S.Ct. 2411. Rather, reasoned the Court, the statute limited the sentencing court’s “discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.” Id. at 88, 106 S.Ct. 2411. The statute merely raised the minimum sentence that could be imposed within the statutory range; it was not “tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. In Apprendi, the Court emphasized that McMillan remains good law but limited it to cases “that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — -a limitation identified in the McMillan opinion itself.” 120 S.Ct. at 2361 n. 13 (emphasis added). Our examination of Apprendi in light of McMillan and Doggett leads inexorably to the conclusion that, as Keith’s sentence did not exceed the maximum sentence of" }, { "docid": "23053069", "title": "", "text": "of the nature of the charge to which he is pleading guilty, fail to mention both the relevant offense, § 841(b)(1)(A), and the determinative element of that offense, crack, I would not find that defendant expressly admitted to 235.42 grams of crack, falling under § 841(b)(1)(A). . Similarly, I would not apply United States v. Harper, 246 F.3d 520, 530 (6th Cir.2001), to this case, because defendant in Harper, unlike defendant in this case, clearly stipulated to a drug quantity falling under § 841(b)(1)(B), which provided the range within which he was sentenced. . \"[T]he definition of 'cocaine base' ... makes it clear that only the 'crack' form of cocaine base should receive the 100:1 sentencing enhancement under § 2D 1.1 [of the sentencing guidelines] for 'cocaine base.'\" United States v. Jones, 159 F.3d 969, 982 (6th Cir.1998). . The majority contends that this Court, unlike several of our sister circuits, has not yet \"squarely addressed” whether Apprendi requirements include listing drug quantities in an indictment. I would find that Strayhom squarely addressed this issue. “Already, we have held, pursuant to Apprendi, that the government must name in the indictment the quantity of drugs for which it seeks to hold the defendant responsible under 21 U.S.C. § 841(a)[,]” Strayhorn, 250 F.3d at 467-68 (citing Ramirez, 242 F.3d 348; Flowal, 234 F.3d at 938). Specifically, drug weight is an element of a § 841(b)(1)(A) offense. See Strayhorn, 250 F.3d at 468. Under Strayhom, I would find error where a defendant, whose indictment did not include drug quantity, was sentenced under § 841(b)(1)(A). Indeed, the position that Strayhom left the indictment issue for another day departs from my understanding of stare decisis. The relevant indictment language in Strayhorn, quoted above, is undeniably direct. Moreover, language in Harper, Ramirez, and Flowal clearly anticipated Strayhom: See Harper, 246 F.3d at 530 (\"[defendant's] Apprendi argument clearly would have merit if the indictment failed to charge him with conspiracy to distribute a specific quantity of drugs[,]\"); Ramirez, 242 F.3d at 352 (“Because in this case the government did not charge [in the indictment] or attempt to" }, { "docid": "2017996", "title": "", "text": "contention in United States v. Smith, 223 F.3d 554, 562-66 (7th Cir.2000). Although United States v. Flowal, 234 F.3d 932, 936-38 (6th Cir.2000), is at odds with Smith (of which the sixth circuit apparently was unaware), we have previously declined to reconsider the holding of Smith and do not find in Flowal any reason to do so. See United States v. Hoover, 246 F.3d 1054, 1058 (7th Cir.2001); United States v. Williams, 238 F.3d 871, 876-77 (7th Cir.2001). Flowal does not discuss McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which held that judges may find, by a preponderance, facts that trigger mandatory minimum penalties. Apprendi did not overrule McMillan, see 530 U.S. at 487 n. 13, 120 S.Ct. 2348, yet, unless McMillan is to be discarded, Flowal and its successors, see United States v. Ramirez, 242 F.3d 348 (6th Cir.2001); United States v. Strawhorn, 250 F.3d 462 (6th Cir.2001), cannot be correct. The sixth circuit is a minority of one, while Smith has the support of at least four other circuits — if any support on top of McMillan were required. See United States v. Harris, 243 F.3d 806 (4th Cir.2001); United States v. Robinson, 241 F.3d 115, 122 (1st Cir.2001); United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000); United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.2000). James has a stronger claim in principle, because any sentence over 30 years depends on finding that a defendant with a prior drug felony conviction (which James has) conspired to distribute at least 5 grams of crack or 500 grams of cocaine hydrochloride. See 21 U.S.C. § 841(b)(1)(B). But James did not ask at trial that the drug-quantity issue be submitted to the jury, and he cannot establish plain eiTor given the volume of cocaine he and his confederates distributed. By convicting him, the jury evinced its finding that James agreed to distribute more than the statutory threshold. James’s contention that he wasn’t lawfully convicted of the extensive conspiracy charged in the indictment because, after Apprendi, each quantity level is a separate offense," }, { "docid": "23053058", "title": "", "text": "a defendant exposed to a higher sentencing range only when defendant’s sentence matches the statutory mandatory minimum. See Strayhorn, 250 F.3d at 469 (Apprendi applies where “ ‘a finding as to the weight of ... drugs determined the [applicable] range of penalties’ ”) (quoting Flowal, 234 F.3d at 936); Ramirez, 242 F.3d at 351 (“moving up the scale of mandatory minimum sentences [under § 841(b)] invokes the full range of constitutional protections [under Apprendi]”); Flowal, 234 F.3d at 937 (Apprendi requirements triggered when defendant was “deprived ... of the opportunity” to receive less than the mandatory minimum sentence under § 841(b)(1)(A)); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ”) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Unlike Garcia, I do not read Ramirez as requiring an indication of judicial constraint to trigger a defendant’s Fifth, Sixth, and Fourteenth Amendment rights under Apprendi. Such reasoning implies that a judge’s decision to impose a sentence greater than the statutory minimum is also a decision to halt operation of a defendant’s constitutional rights under Apprendi. Regardless, under Strayhom and Flowal, Apprendi requirements apply to a defendant who, as in this case, was deprived of the opportunity to receive less than the mandatory minimum sentence under § 841(b)(1)(A), the applicable sentencing range determined by the factual finding of crack. Therefore, the existence of crack as an element of the offense must be proven beyond a reasonable doubt. The majority also questions the Flowal line of cases by citing United States v. Hill, 252 F.3d 919 (7th Cir.2001), which criticized Flowal and its progeny in light of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan upheld a state statute that exposed defendants to a mandatory minimum sentence upon the finding, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” during the commission of certain enumerated" }, { "docid": "23053068", "title": "", "text": "In violation of Title 21, United States Code, Section 841(a)(1).” (J.A. at 5.) . The majority contends that the indictment distinctions between this case and Pruitt are irrelevant as to whether defendant expressly admitted to possessing 235.42 grams of crack. The indictment in Pruitt included drug type, and may or may not have included drug quantity. Pruitt, 156 F.3d at 642. The indictment in Nesbitt included drug type and quantity, as well as reference to § 841(b)(1)(A). Nesbitt, 90 F.3d at 166. I would not seize upon the possibility that the Pruitt indictment failed to include drug quantity to infer an express admission of crack in this case. Whether or not Strayhorn has settled the indictment issue under Apprendi, this Court has repeatedly found that drug weight is an element of an offense under § 841(b)(1)(A). See Strayhorn, 250 F.3d at 468; Ramirez, 242 F.3d at 351-52; Flowal, 234 F.3d at 938. When the indictment, the plea agreement, and the court, in carrying out its obligation under Fed. R.Crim. Pro. 11 to inform the defendant of the nature of the charge to which he is pleading guilty, fail to mention both the relevant offense, § 841(b)(1)(A), and the determinative element of that offense, crack, I would not find that defendant expressly admitted to 235.42 grams of crack, falling under § 841(b)(1)(A). . Similarly, I would not apply United States v. Harper, 246 F.3d 520, 530 (6th Cir.2001), to this case, because defendant in Harper, unlike defendant in this case, clearly stipulated to a drug quantity falling under § 841(b)(1)(B), which provided the range within which he was sentenced. . \"[T]he definition of 'cocaine base' ... makes it clear that only the 'crack' form of cocaine base should receive the 100:1 sentencing enhancement under § 2D 1.1 [of the sentencing guidelines] for 'cocaine base.'\" United States v. Jones, 159 F.3d 969, 982 (6th Cir.1998). . The majority contends that this Court, unlike several of our sister circuits, has not yet \"squarely addressed” whether Apprendi requirements include listing drug quantities in an indictment. I would find that Strayhom squarely addressed this issue." }, { "docid": "22923625", "title": "", "text": "not charge or attempt to prove to the jury a quantity of drugs that would permit a mandatory sentence, we remand this case to the District Court with instructions to sentence the defendant under 21 U.S.C. § 841(b)(1)(C) and in accordance with the U.S. Sentencing Guidelines. SILER, J. (pp. 352-53), delivered a separate concurring opinion. . Ramirez had previously been convicted of Sale or Transportation of a Controlled Substance in Los Angeles, CA Superior Court. He was sentenced to three years of probation on the condition that the first 365 days be spent in the county jail. . This instruction specifically does not cover drug conspiracies exclusively involving Marihuana, which are governed by 21 U.S.C. § 841(b)(1)(D). SILER, Circuit Judge, concurring. CONCURRENCE I concur in the decision because, after the oral argument in this case, another panel decided United States v. Flowal, 234 F.3d 932 (6th Cir.2000). Therefore, we cannot overrule the decision of another panel. See Salmi v. Sec’y of Health and Human Serv., 774 F.2d 685, 689 (6th Cir.1985). Nevertheless, I write this concurrence to question whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is as far-reaching as we determine in this case, following Flowal. Apprendi did not concern a mandatory minimum sentence, as in the case at bar. Its holding is: 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. Id. at 2362-63. See United States v. Munoz, 233 F.3d 410, 2000 WL 1738693 (6th Cir. Nov.27, 2000) (holding defendant’s sentence was not invalid under Apprendi because he received a sentence less than the maximum statutory penalty); United States v. Corrado, 227 F.3d 528, 542 (6th Cir.2000) (holding Apprendi is not triggered when defendants were sentenced within the prescribed maximum terms before factoring in any enhancing provisions). The case that is similar to our case at bar is McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which involved a state" }, { "docid": "19653927", "title": "", "text": "therefore had to be charged in the indictment and proven to a jury beyond a reasonable doubt. The Supreme Court disagreed. The Court held that the Act merely limited the sentencing court’s discretion by requiring a penalty within the range already available. No additional findings were required. The legislature “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.” Id. at 89-90, 106 S.Ct. 2411. Here, as in McMillan, the additional fact finding “operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding ... ”. Id. at 88, 106 S.Ct. 2411. Tidwell claims that McMillan, as well as Harris, are distinguishable because § 848(b) denied the sentencing court any opportunity to impose a sentence within a prescribed range. By contrast, in both Harris and McMillan, imposition of the mandatory minimum “required the judge to impose a ‘specific sentence within the range authorized by the judge’s finding that the defendant [was] guilty.’ ” Harris, 536 U.S. at 564, 122 S.Ct. 2406 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348). As we have just noted, although Tidwell may have expected that the district court would have discretion to impose a lesser sentence, that expectation does not rise to the level of a constitutional guarantee. Tidwell also claims that, where the minimum and maximum sentences are identical, the already difficult task of distinguishing Apprendi from McMillan and Harris becomes even more tenuous. However, it is not for us to reconsider McMillan and Harris, or resolve any tension that may exist between that line of cases, Apprendi and its progeny. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“[i]f a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its" }, { "docid": "22808386", "title": "", "text": "for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. But the Apprendi Court expressly limited its holding so as not to overrule McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Court upheld a state statute that required a sentencing judge to impose a mandatory minimum sentence if the judge found, by a preponderance of the evidence, that the defendant possessed a firearm during the commission of the offense of conviction. See Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Reading McMillan and Apprendi together, until the Supreme Court says otherwise, it appears that a sentence is not constitutionally defective unless the sentence exceeds the statutory maximum authorized by the indictment and the jury’s ultimate verdict. . 21 U.S.C. § 841(a) provides that it is \"unlawful for any person knowingly or intentionally\" to \"manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” This section does not set forth any specific drug quantity that must be involved in the crime. 21 U.S.C. § 841(b)(1)(C) sets forth a maximum penalty of 20 years imprisonment for a violation of § 841(a). 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) criminalize the same conduct as § 841(a) but establish specific threshold drug quantities that must be involved in the crime. These sections provide for correspondingly more severe penalties than that set forth in § 841(b)(1)(C) for a violation of § 841(a). Specifically, § 841(b)(1)(A) establishes a penalty of 10 years to life imprisonment or, if death or serious bodily injury results from use of the drug involved in the crime, a penalty of 20 years to life. Section 841(b)(1)(B) establishes a penalty of 5 to 40 years imprisonment, or, if death or serious bodily injury result from use of the drug involved in the crime, a penalty of 20 years to life. . Our circuit reached this conclusion in United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000), as" }, { "docid": "23053057", "title": "", "text": "U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A factual finding that a conviction under 21 U.S.C. § 841(a)(1) involved crack, which exposes a defendant to a higher sentencing range under § 841(b), triggers Apprendi requirements. See United States v. Strayhorn, 250 F.3d 462, 470-71 (6th Cir.2001); United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2001); United States v. Flo wal, 234 F.3d 932, 936 (6th Cir.2000). Thus, Apprendi requires that defendant’s possession of crack in this case be proven beyond a reasonable doubt. The majority contends that the Flowal line of cases has been limited by United States v. Garcia, 252 F.3d 838 (6th Cir.2001). Garcia found that exposure to a higher sentencing range under Ramirez triggers Apprendi requirements only when the actual sentence is “at the bottom of the higher statutory range,” which would indicate that the sentencing judge felt constrained when sentencing under the mandatory higher range. Garcia, 252 F.3d at 843-44. I do not read Strayhom, Ramirez, Flowal, and Apprendi as establishing, as Garcia found, that Apprendi safeguards reach a defendant exposed to a higher sentencing range only when defendant’s sentence matches the statutory mandatory minimum. See Strayhorn, 250 F.3d at 469 (Apprendi applies where “ ‘a finding as to the weight of ... drugs determined the [applicable] range of penalties’ ”) (quoting Flowal, 234 F.3d at 936); Ramirez, 242 F.3d at 351 (“moving up the scale of mandatory minimum sentences [under § 841(b)] invokes the full range of constitutional protections [under Apprendi]”); Flowal, 234 F.3d at 937 (Apprendi requirements triggered when defendant was “deprived ... of the opportunity” to receive less than the mandatory minimum sentence under § 841(b)(1)(A)); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ”) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Unlike Garcia, I do not read Ramirez as requiring an indication of judicial constraint to trigger a defendant’s Fifth," }, { "docid": "22569520", "title": "", "text": "maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). However, the Apprendi majority also stated that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348 citing Jones v. U.S., 526 U.S.227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (emphasis added). While this statement cast some doubt on the belief that Appren-di was intended to apply only to enhancements of maximum penalties, the majority also expressly stated it was not overruling McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which upheld a state statute allowing judges to find minimum penalty enhancement factors by a preponderance of the evidence. Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Accordingly, it was unclear whether Ap-prendi applied to mandatory minimum sentences as well. The somewhat conflicting sentiments within the Apprendi opinion left the question open for the federal circuits. Every other circuit that had addressed the issue held that Apprendi extends only to enhancements above the statutory maximum sentence. See, e.g., U.S. v. Robinson, 241 F.3d 115, 122 (1st Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 130, 151 L.Ed.2d 84 (2001) ; U.S. v. Harris, 243 F.3d 806, 809 (4th Cir.2001); U.S. v. Keith, 230 F.3d 784, 787 (5th Cir.2000), cert. denied, 531 U.S. 1182, 121 S.Ct. 1163, 148 L.Ed.2d 1023 (2001); U.S. v. Rodgers, 245 F.3d 961, 965-68 (7th Cir.2001); U.S. v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000); U.S. v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001); U.S. v. Sanchez, 269 F.3d 1250, 1269 (11th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002). However, in cases such as U.S. v. Flowal, 234 F.3d 932 (6th Cir.2000), U.S. v. Ramirez, 242 F.3d" } ]

[ { "docid": "17505764", "title": "", "text": "would be thought likely, by those skilled in the art, to hydrolyze and insolubilize the PVA and render its use impracticable. This is because moisture would be expected to get to the alkaline coating on Morgenthaler’s coated KDCC particles through the PVA envelope containing water-absorbing plasticizer, and the moist alkaline material, independently of the KDCC, thereupon would cause further hydrolysis and reduction in the solubility of the PVA. I may be wrong. So may the majority. In any event, I consider it beyond the province of this court to devise new theories as to how combinations of chemical compounds and mixtures disclosed by the references may interact or react under vari' ous conditions of storage over different periods of time. Such matters can be determined only by actual tests. Appellant has made tests. We have not, nor has the Patent Office. Neither do any of the references show any investigation of the problem of preventing the insolubilization of PVA enclosures by the materials contained in them! I think the rejections — both those made by the Patent Office and those independently conceived by the majority — are too speculative to support a finding of obviousness under section 103 and I would reverse. See 35 USC 132. The province oí this court Is to review the rejections as made in the Patent Office where applicants are provided a reasonable opportunity to traverse them and where there is supposed to be technical competence to weigh their answers. Numerous “alkaline material” components in the “bleach iproduet” are disclosed including those used by Morgenthaler for coating. The specification explains, with respect to this so-called water-soluble so-called PVA (which is not a single specific substance), that PVA is made by hydrolyzing polyvinyl acetate and that maximum water-solubility is obtained when it is approximately 88% hydrolyzed. Appellant prefers to start by using for packages a material which is about 80% hydrolyzed, the lower end of the S0-90% range he considers desirable, so that some further hydrolysis during storage will not adversely affect solubility. See the definitions of “glycerol,” which is glycerin, in Webster’s New International Dictionary" } ]

[ { "docid": "10669102", "title": "", "text": "as admitted that he was afraid that any changes in the results of the 1953 measurements or any concession that variations in result from batch to batch could be. expected to occur would cast doubt upon the contention made by RCA to the Patent Office that it had discovered a practicable scientific method for separating satisfactory zinc oxides from unsatisfactory ones. Greenspan testified : “The problem I had was that we had gone into the Patent Office and we said there are two classes of zinc oxide that are separated by the value of surface photoconductivity. * * * So, if the test itself was not reproducible, or if it didn’t really divide zinc oxides into two parts, then right at the outset it wasn’t a worthwhile thing to go after. * -X- * * * * “Now, I knew of the criterion. It was my problem to present to the Patent Office reasons why I thought this limitation in the claim distinguished the claim over the prior art and whether he spoiled it as related to that problem that I had: that is, would it make it more difficult for me to argue patentability with this limitation.” It may be unduly harsh to characterize RCA’s conduct here as fraud. Conduct which has been so labeled in the decisions has, by and large, been more reprehensible than this. But at the least, it was conduct which was lacking in candor. It was intentional nondisclosure of relevant data which might have affected the outcome of the patent application. It has been held in several cases that the party asserting invalidity of a patent on the ground of fraud has the burden of proving, not only the fraud, but also the fact that the fraud was material, i. e., that if the Examiner had known the true facts, he would not have authorized the issuance of the patent. Charles Pfizer & Co. v. Federal Trade Commission, supra; Corning Glass Works v. Anchor Hocking Glass Corp., 253 F.Supp. 461 (D.Del.1966), rev’d on other grounds, 374 F.2d 473 (3d Cir. 1967), cert. denied, 389" }, { "docid": "1407962", "title": "", "text": "values given. * * * The appellant rebuts this criticism as follows: There is nothing in either of the reference citations, or indeed in appellant’s disclosure, pointing to any criticality in the heat treatments employed; they all use the combination of solution treatment, preliminary hardening treatment, and final precipitation-hardening treatment wherein a range of treating temperatures and a range of time of treatment are acceptable. In Goller the solution annealing is conducted at 1,800° to 2,'000° F., the preliminary hardening at 1,200° to 1,600° F., preferably 1,400° F., and the final hardening at 750° to 1,000° F. * * *; in Walton et al. these three treatments are respectively conducted at 1,800° to 2,000° F., 1,300° to 1,500° F. and 700° to 1,100° F. * * *; and in appellant’s disclosure the three are conducted at 1,800° to 2,100° F., 1,400° F., and 750° to 1,100° F., respectively * * *. We agree with appellant that the board has presented no convincing reason why the alloys cannot be compared. Although differences in heat treatment do exist, there is nothing before us to suggest that these slight differences would affect both strength and ductility. The solicitor treats the improved properties in a somewhat different manner, stating: Certainly, the references show that it is known that steels containing either molybdenum or nitrogen have good elongation, and appellant has not shown that the improved elongation of his steel is anything other than the expected additive effects of molybdenum and nitrogen. * * * We are at a loss to know where the references indicate that the additive effect of molybdenum and nitrogen is improved elongation. We are of the view that the combination of strength and ductility would be unexpected from the cited prior art. The solicitor further argues that even if the elongation is unexpected, the claimed alloy is obvious because it is obvious to make an alloy containing both nitrogen and molybdenum for their desired property. In this regard we note in reading the references cited by the Patent Office that the formulation of a suitable alloy cannot be done merely" }, { "docid": "1740462", "title": "", "text": "in not reconsidering their decisions. The application of the principle -of res judicata was but a convenient and conventional legal way of saying that we would not go over the same arguments we had already been over, as though on a rehearing, and that the like view of the Patent Office was justifiable. The present case does not present a comparable situation. The question now is whether the claimed invention is patentable in view of evidence of unexpected advantageous properties we felt we should not consider in the prior case (whether rightly or wrongly I do not say), plus additional evidence. The issue in the prior case was section 108 obviousness in view of closeness of structure to the reference •compound without the evidence. The holding was that the attempted showing of properties did not overcome the obviousness rejection because there was no disclosure of such properties in the specification, for which reason the evidence would not be considered. On this second application the specification does contain the disclosure, the Patent Office has looked at the evidence, and has decided that the claimed compounds are not obvious. The Patent Office has already reviewed the question of patentability on the merits but, having done so, says its former stand, now changed, must be adhered to only because decisions of this court compel it. On this second application, the Patent Office has been entirely satisfied that Herr is entitled to his patent v/nder the patent statute but takes the position that this court says he must not have it. I find nothing in Lundberg to compel such an anomalous result. I do not mean to imply that the fact the Patent Office has already considered the merits of the rejection has anything to do with our decision here. I shall discuss later its obligation to do so. In re Prutton, the other case principally relied on below and in the dissent, was cited in Lundberg. The question in Prutton was whether the issue was the same as the issue passed on by the Court of Appeals for the District of Columbia on" }, { "docid": "10091796", "title": "", "text": "he “has recovered his reason and that he is now of sound mind.” It was because another judicial determination of his competency was not made before he was tried that we reversed his earlier conviction. Kelley v. United States, supra. . Their verdict showed that the jury believed one of the participants to be appellant. . The robbery had netted the two robbers $1,014.00. There was evidence to the effect the loot was about equally divided between them. . Testimony like that which we now consider was also introduced at the first trial but we did not, unfortunately as it now appears, rule upon its admissibility when we reversed on other grounds, thinking it was unnecessary to do so. Since the case is here again with a similar question we realize it would have been better had we ruled upon it on the first appeal. . Or, according to Officer O’JSTeill’s version, “Mr. Kelley said that he didn’t care to make any statements until he consulted his lawyer.” . Whether because testimony of admissions and confessions is not obnoxious to the rule or because it is admitted under an exception to the rule is unimportant. See Morgan, “Admissions As An Exception To The Hearsay Hule,” 30 Yale L.J. 355; IV Wigmore, Evidence §§ 1048-50 (3d ed. 1940). . Not to be confused with the appellant Kelley. . Or, as Officer O’Neill recalled appellant’s words, “Why should I tell you anything that would send me to jail?” . Since the evidence referred to is held to have been erroneously admitted for the ' reasons stated, we do not pass upon the question whether it would be inadmissible because of the rule barring involuntary confessions or because of the Fifth Amendment imperative that no person “shall be compelled in any criminal case to be a witness against himself * * U.S.Const. Amend. Y. The applicability of either theory to this case is strongly suggested by Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. The Bram decision has had a mixed reception by the federal courts. Compare United" }, { "docid": "22234926", "title": "", "text": "in a path not parallel to the sides of the spindle (the second step claimed by the appellant as novel) would seem to be equally obvious. In fact, if the taper of the disk is to be carried over into the finished article, it could not be done in any other way. In short, I cannot find anything un-obvious about the features which the appellant asserts constitute an advance over the prior art. The record supports the majority’s finding that what the appellant did is new, and its utility has not been challenged. However, novelty and usefulness do not add up to patentability. The majority opinion speaks of the appellant’s “solution to the problem of making a tapered wall frusto-cone.” It is true that in a doubtful case the fact that an invention solves a problem in the art may sometimes be taken as evidence that it was not obvious, but that is only where there is evidence of an old and recognized need which the invention satisfies and which others have tried without success to supply. In the present case, if any such need existed, the record does not show it, nor does it appear that anyone ever tried or wanted to do what the appellant did. So far as the record shows, the “problem” which the appellant is said to have solved was merely that of accomplishing, by a simple adaptation of known methods, something which he set out to do. The farmer who sets out to construct a fence around his ten-acre field has that kind of “problem,” and he solves it when he completes the job. The fence and the way in which the farmer goes about building it will almost certainly differ from all other fences, but the fact that the desired result has been accomplished is no evidence that it was not perfectly obvious. The majority, to fortify its conclusion, invokes the principle that a doubt as to patentability should be resolved in favor of the applicant. It is too late for me to question the existence of that rule, although I think it" }, { "docid": "8113100", "title": "", "text": "to be fair. I have a couple more, but aside from strictly character witnesses I want to use Mr. Brigman on a few brief facts independent of character, and I believe I am going to forego the others, but unless Your Honor wants to question them I shall not offer them. “The Court: It is your own ruling.” (Tr. pp. 502-3) Following is from statement to the court by Appellant Blocker: “I have made some mistakes in these matters, and as I say for some time now I have recognized that fully, and I want to make that very clear to Your Honor that I do recognize it. Looking back over what went on, I am sorry that when things were presented in an improper manner that I didn’t just leave the services of the company and find employment elsewhere, but hindsight is — it is just a matter of hindsight, and it is hard to lean on that at his time. . “I will say this, today, and as far as anything in the future is concerned, I would definitely leave the services of a company before I would ever do anything, if called upon, in an improper manner. “I am not attempting at this time in any way to whitewash what I have done in the past. For quite a long time now I have been tortured more, much more, than could possibly be done by what would be done in a Court. I own up to any improprieties that may have been permitted to exist. “The Court: Is there any doubt in your mind about that, you used the word ‘might’ ? “Mr. Blocker: There is no doubt at all, Your Honor. I didn’t intend to use that word. “There are improprieties that exist. “There is one other thing that occurs to me that you might wonder about, why if I had objection to accounting irregularities, as I pointed out, why would I have let some amount of work be done by the company out at my house in 1901, which I did at that time.” (Tr." }, { "docid": "10968482", "title": "", "text": "but on the basis of what the board said in its opinion. The statute (35 U.S.C. 141) says “an applicant dissatisfied with the decision of the Board of Appeals may appeal.” I am aware that it is the custom to call the board’s opinions “decisions,” but that is not what they are. The decision is the act of the board in saying whether each ground of rejection of the examiner which is appealed to it is right or wrong. The opinion is a discussion, an exposition, a rationalization or justification of the decision or decisions made. It is apparent to me from having perused a number of the more voluminous reasons of appeal that their undue multiplicity results from going through an opinion with a fine-toothed comb and asserting error with respect to every statement made which conceivably could be adverse to the appellant’s cause, and then doubling them so far as possible by repeating them in negative form. As I said, unless challenged, I, at least, do not read such reasons. I do not believe my colleagues often do either. Why should we? We have to read the board’s opinion and the appellant’s brief wherein he sets forth his reasons for disagreeing with the board in a much more intelligible fashion. The brief, moreover,.is the result of more critical analysis of the case and many points mentioned in such reasons may turn out to be unimportant. The reasons, on the other hand, must be prepared in a hurry (Buies 304 and 302, set the time for filing reasons at 60 days from the date of the board’s decision) and, under some of the more frightening opinions of this court, must be designed to cover every possible contingency at a time when it has not been decided how the case is to be argued. It is the kind of a job that would be turned over to a junior associate in a law office, and this may give rise to trouble where outmoded technicalities inherited from a century ago must be complied with. Probably the case which threw the biggest" }, { "docid": "5477917", "title": "", "text": "or indeed in appellant’s disclosure, pointing to any criticality in the heat treatments employed ; they all use the combination of solution treatment, preliminary hardening treatment, and final precipitation-hardening treatment wherein a range of treating temperatures and a range of time of treatment are acceptable. In Goller the solution annealing is conducted at 1800° to 2000° F., the preliminary hardening at 1200° to 1600° F., preferably 1400° F., and the final hardening at 750° to 1000° F. * *; in Walton et al. these three treatments are respectively conducted at 1800° to 2000° F., 1300° to 1500° F. and 700° to 1100° F. * * *; and in appellant’s disclosure the three are conducted at 1800° to 2100° F., 1400° F., and 750° to 1100° F., respectively * * *. We agree with appellant that the board has presented no convincing reason why the alloys cannot be compared. Although differences in heat treatment do exist, there is nothing before us to suggest that these slight differences would affect both strength and ductility. The solicitor treats the improved properties in a somewhat different manner, stating: Certainly, the references show that it is known that steels containing either molybdenum or nitrogen have good elongation, and appellant has not shown that the improved elongation of his steel is anything other than the expected additive effects of molybdenum and nitrogen. * * * We are at a loss to know where the references indicate that the additive effect of molybdenum and nitrogen is improved elongation. We are of the view that the combination of strength and ductility would be unexpected from the cited prior art. The solicitor further argues that even if the elongation is unexpected, the claimed alloy is obvious because it is obvious to make an alloy containing both nitrogen and molybdenum for their desired property. In this regard we note in reading the references cited by the Patent Office that the formulation of a suitable alloy cannot be done merely by adding one element characterized as a strength additive or another as an elongation additive. For example, Goller notes that aluminum" }, { "docid": "15373582", "title": "", "text": "for the vapor phase reaction of the prior art. The error here in so considering appellant’s process is the old error of considering the separate steps of the process rather than considering the process as a whole. To here give effect to the mandate of 35 USC 103, we must start with a unitary process, which is the invention as a whole, and then consider the factual significance of the claimed portions thereof as they contribute to the “effect” by which the obviousness of the process is to be measured. Thus when appellant submitted affidavit proof of this “effect” and related it to the differences between the claimed process and the prior art processes, I think much more is required of the examiner than a reiteration of his subjective opinion concerning the obviousness of the invention even though stated in terms of criticism of the averments in the affidavit. At this level both the applicant and the examiner should be concerned with development of facts on which the ultimate legal conclusion of obviousness can be grounded. Here the office position fails because the examiner did not come forward with factual support for his position after appellant had factually supported the contrary position. If the office position is to be sustained, when challenged it must be supported by factual data from the technical literature or references which would have made obvious to one of ordinary skill in this art, at the time of appellant’s invention, that the change from vapor phase to liquid phase operation would produce the results appellant has shown to flow therefrom. I do not consider that the examiner has here discharged the obligations imposed on the Patent Office by the Deere case. The legal con- elusion of obviousness under 35 USC 103 must be based on factual considerations which I find to be missing from tbe present record. MaRttn, Judge, dissenting. Tbe key question bere is whether tbe improvement in efficiency, which I assume arguendo is shown by the affidavit, was to be expected. The majority is of the view that it was not; I think it" }, { "docid": "10062170", "title": "", "text": "of res judicata was but a convenient and conventional legal way of saying that we would not go over the same arguments we had already been over, as though on a rehearing, and that the like view of the Patent Office was justifiable. The present case does not present a comparable situation. The question now is whether the claimed invention is patentable in view of evidence of unexpected advantageous properties we felt we should not consider in the prior case (whether rightly or wrongly I do not say), plus additional evidence. The issue in the prior case was section 103 obviousness in view of closeness of structure to the reference compound without that evidence. The holding was that the attempted showing of properties did not overcome the obviousness rejection because there was no disclosure of such properties in the specification, for which reason the evidence would not be considered. On this second application the specification does contain the disclosure, the Patent Office has looked at the evidence, and has decided that the claimed compounds are not obvious. The Patent Office has already reviewed the question of patentability on the merits but, having done so, says its former stand, now changed, must be adhered to only because decisions of this court compel it. On this second application, the Patent Office has been entirely satisfied that Herr is entitled to his patent under the patent statute but takes the position that this court says he must not have it. I find nothing in Lundberg to compel such an anomalous result. I do not mean to imply that the fact the Patent Office has already considered the merits of the rejection has anything to do with our decision here. I shall discuss later its obligation to do so. In re Prutton, the other case principally relied on below and in the dissent, was cited in Lundberg. The question in Prutton was whether the issue was the same as the issue passed on by the Court of Appeals for the District of Columbia on a parent application, of which the application on appeal was" }, { "docid": "13637607", "title": "", "text": "the broad claim language is supported by the specification, description appears to rest solely on a question of semantics. If the test were so narrow I would still dissent from the result in this case since I find it more reasonable to interpret the recitation on diamines, for example, as quoted by the majority, as being narrowed through the use of “either . . . or” to the two classes specifically mentioned. I would not stop here, however. The inquiry shmild never be merely semantic in nature. Mere correspondence between the language used in a claim and that employed in the specification 'has never been held to satisfy the requirements of the first paragraph of 35 USC 112. I would hold that it doesn’t satisfy any “description” requirement either. In the case before us, the Patent Office tribunals, and in particular, the examiner — who must be presumed by us to be skilled in the pertinent art in the absence of evidence to the contrary — have disputed the fact that the scope of appellants’ invention would be obvious from the language of the description. Keeping in mind the well-known unpredictability of the chemical sciences, I find that the examiner’s objections were reasonable. Beyond asserting that they are entitled to the broad claims they are seeking, appellants have not contradicted this position. Feeling, as I do, that the description requirement should serve to assure that one of ordinary skill in the pertinent art will, in fact, be taught by a specification disclosure, I conclude that the disclosure before us does not adequately describe the subject matter 'being claimed. 1 do not mean to imply that the disclosure must convince one of ordinary shill as to the fact of enablement. All that I would require is that the description be such as to make those skilled in the art aware of what is asserted as being enabled. We have held that the scope of protection sought after must be commensurate with the scope of enablement provided by the disclosure. I believe that the disclosure should also contain a description of what" }, { "docid": "1465024", "title": "", "text": "jury’s verdict. We do not agree with appellant’s second assigned error and reject it. The judgment and sentence of the Trial Court is affirmed. MERRILL, Circuit Judge (dissenting). I dissent, believing that the Diggs-Caminetti rule should not apply to those cases where as here the taking of the stand by the defendant was upon an issue unrelated to the issue of guilt. Grantello v. United States, 8 Cir., 1924, 3 F.2d 117, 121. The question of the voluntariness of a confession involves constitutional guaranties and, it would seem to me, should be recognized to be an issue wholly independent of the issue of guilt — one upon which the defendant should be free to testify, subjecting himself to cross-examination upon that issue and as to credibility but without subjecting himself to cross-examination or incriminating inferences upon the issue of guilt. The choice of federal law that factual issues upon the question of voluntariness be resolved by the trial jury rather than by some independent trier of fact (cf. Enoch v. Commonwealth, 1925, 141 Va. 411, 126 S.E. 222; 3 Wigmore, Evidence (3d Ed., 1940) §§ 86CM361) should not be permitted to result in prejudicing the defendant in his right to testify freely upon this matter. I cannot agree with the majority that the quoted testimony of the defendant amounts to a present assertion of innocence. If the whole story of an involuntary confession is to be told, it would normally include three parts: the assertion of innocence to the interrogating officer, the application of duress and the resulting confession. Such was the story told by this appellant. The quoted testimony, to me, was no more than his statement of part number one. The fact that he was not asserting his innocence under oath would seem to have been made clear to the jury. Counsel opened his direct examination of appellant in the following manner: “Q. Now, Mr. Dyson, I am going to ask you questions which relate solely to the circumstances under which you made certain confessions to Sergeant Rafferty of the Los Angeles Police Department and to Mr. Crowe." }, { "docid": "22601575", "title": "", "text": "between the injuries asserted to have been suffered by appellant and the procedures complained of is not, on any objective reading of the complaint, an accidental omission or the result of counsel’s “inartfulness” — as my Brother Marshall would put it. In my view, the only plausible inference — especially when it is remembered that appellant was represented by counsel throughout this litigation — is that such allegations were omitted because appellant had no facts to support them. The prevailing opinion’s strained construction of the complaint goes well beyond the principle, with which I have no quarrel, that federal pleadings should be most liberally construed. It entirely undermines an important function of the federal system of procedure — that of disposing of unmeritorious and unjusticiable claims at the outset, before the parties and courts must undergo the expense and time consumed by evidentiary hearings. Accordingly, I would sustain the dismissal of the complaint on the ground that appellant has not shown himself to have standing to challenge the Commission’s procedures. II. Because the complaint is barren of any indication of the manner in which appellant is affected by the Commission’s formal procedures, the prevailing opinion is required to make its own assumptions. It places appellant in the vague position of “a person being investigated” by the Commission, ante, at 428, 429, and thence proceeds to discuss the rights of such a person to confront witnesses and to offer evidence in his own behalf. The prevailing opinion appears understandably reluctant to commit itself to very much. As I read the opinion, it does not state that any of the Commission’s procedures are actually unconstitutional, but holds only that there is enough latent in the complaint that the case should proceed to trial. Of necessity, however, my Brother Marshall has to examine some of the constitutional issues sought to be raised by appellant in order to justify a remand, and his discussion leaves radiations which are, at least, unclear. Reluctant as I am, under the circumstances of this case, to discuss the merits, I therefore feel compelled to outline my own views." }, { "docid": "22151715", "title": "", "text": "different legal conclusions, or explanations of a result, deduced from the same basic facts. See Hazeltine Corp. v. Emerson Television-Radio, Inc., 2 Cir., 129 F.2d 580, 582.) The court, however, found only invalidity. It would seem rather natural for the plaintiff to concentrate his appeal on that issue; demonstration of eri'or there was basic to his case and, if achieved, would require a reversal and remand, since the finding attacked was the foundation of the judgment. I find no concession which goes at all beyond these natural circumstances of the case, or is anything more than an attempt, which we really ought to praise, to limit the appeal to the essential matter. As appellant puts it, he “is not appealing from that part of the judgment which [as he erroneously assumes] holds the claims not infringed.” Under the circumstances, including defendant’s admitted devices introduced in evidence below and his continued all-out attack, even to this court, on plaintiff’s claims on all grounds, including infringement, of course plaintiff could appeal on all grounds by just saying so, as the opinion concedes he did originally. It seems to me, therefore, rather a distortion of the plain facts before us to hold plaintiff tied to the concession, that is, that legal theory, which we now attribute to his counsel, that defendant does not even threaten future infringement. And we say that when actually the parties are fighting tooth and nail over what in final analysis and however described are competing devices! Next, even if plaintiff could and did concede away his appeal as to infringement— propositions, as we have seen, most doubtful — and if, therefore, he was seeking only a declaration of validity as to his patent, I cannot see why jurisdiction to make or to review a declaration was lacking. His prayers for relief below, of course, do not bind him after issue joined; he should be granted any relief to which the facts show he is entitled. Federal Rules of Civil Procedure, rule 54(c). The suggestion that he must show infringement, i.e., breach of duty, before he can get such" }, { "docid": "23352048", "title": "", "text": "trials is especially important in the Armed Forces — and that Congress, too, has condemned “unnecessary delay” in military justice. Uniform Code, Article 98, 50 USC § 692. However,, it is inevitable that some of the safeguards now granted an accused by the Uniform Code — protections in most instances patterned on civilian practice — will occasionally result in less expedition than heretofore. Presumably Congress was aware of this circumstance — and it is now this Court’s duty to execute the legislature’s mandate — even if, as here, the result is a longer trial than a convening authority may desire. See Roche v. Evaporated Milk Ass’n, supra. Furthermore — and while speed is appropriate — both civilian and military tribunals have recognized the compelling need to avoid “the haste of the mob.” See Powell v. Alabama, 287 US 45, 77 L ed 158, 53 S Ct 55; United States v. Fletcher, 6 CMR 163. VI Certain procedural slips by the law officer and an abundance of zeal on the trial counsel’s part marked the instant trial. Perhaps its proceedings would have taken the same direction had the law officer and counsel not felt that the convening authority was looking down their very throats and measuring every word they spoke. But the unfortunate circumstance that the convening authority had previously and openly damned one of these functionaries as an abuser of discretion gives the conduct of the trial an especially unpleasant aroma. Viewing the record as a whole, I am fortified in my belief that the appearance of “command influence” is vivid enough here to require reversal. Latimer, Judge (dissenting): I dissent. Because the principal opinion so scantily touches on the facts of this case, I prefer to make a more complete recitation. The chronology of events shown in the record establishes that appellant was arrested by civilian police on January 12, 1952, for having committed an act of sodomy. He was released on bond and permitted to return to his post of duty. A pretrial investigation was held by naval authorities which resulted in a recommendation, dated February 11, 1952," }, { "docid": "21338587", "title": "", "text": "on the basis of what the board said in its opinion. The statute (35 U.S. C. § 141) says “[a]n applicant dissatisfied with the decision of the Board of Appeals may appeal.” I am aware that it is the custom to call the board’s opinions “decisions,” but that is not what they are. The decision is the act of the board in saying whether each ground of rejection of the examiner which is appealed to it is right or wrong. The opinion is a discussion, an exposition, a rationalization or justification of the decision or decisions made. It is apparent to me from having perused a number of the more voluminous reasons of appeal that their undue multiplicity results from going through an opinion with a fine-toothed comb and asserting error with respect to every statement made which conceivably could be adverse to the appellant’s cause, and then doubling them so far as possible by repeating them in negative form. As I said, unless challenged, I, at least, do not read such reasons. I do not believe my colleagues often do either. Why should we ? We have to read the board’s opinion and the appellant’s brief wherein he sets forth his reasons for disagreeing with the board in a much more intelligible fashion. The brief, moreover, is the result of more critical analysis of the case and many points mentioned in such reasons may turn out to be unimportant. The reasons, on the other hand, must be prepared in a hurry (Rules 304 and 302, set the time for filing reasons at 60 days from the date of the board’s decision) and, under some of the more frightening opinions of this court, must be designed to cover every possible contingency at a time when it has not been decided how the case is to be argued. It is the kind of a job that would be turned over to a junior associate in a law office, and this may give rise to trouble where outmoded technicalities inherited from a century ago must be complied with. Probably the case which" }, { "docid": "12620955", "title": "", "text": "fear in Kaliningrad, it would be surprising to find someone willing to investigate and publicize such an attack. Other requested documents — from the hospital in which Andrei was held against his will; from, the tax service that ordered him to drop the investigation; from the governor’s office that was being investigated — can only be described as “corroboration from the persecutor.” See id. The IJ also expected the petitioners to provide corroborating letters and affidavits from friends and acquaintances. This may be a reasonable requirement in general, but in this case Evguenia explained that it was difficult for her to request such help, given the threats and attacks that had been made against people associated with the investigation. In support of this explanation, Evguenia pointed to the letter she received from Irina Bulatova, which described an atmosphere of pervasive intimidation: Unfortunately I could not find out anything [about Vladislav, Evguenia’s missing son] since our last talk over the phone. Nobody either heard or knows anything at all. It looks like nothing has ever happened, like this topic has simply gone. Currently other things not less terrible are happening: people disappear without a trace, shooting, fights between criminal groups, abducting people for a ransom; everybody, like the Glushkovs [mutual acquaintances], is afraid to open the mouth. When I was at their place his wife kept on kicking him under the table (it was even shaking) for him not to blurt out too much. They know that we kept in touch, that’s why they were not happy when I asked them questions. Now I am more than ever convinced that fear makes people lose what is good in them. The IJ does not appear to have taken this atmosphere into consideration in finding that the petitioners should have produced corroborating evidence from friends and acquaintances still living in Kaliningrad. There was one person identified by the IJ who might have been able to testify: Irina Bongarenko, the former neighbor now living in Chicago. Evguenia said that it didn’t occur to her that such testimony would be necessary or helpful, but the" }, { "docid": "22234925", "title": "", "text": "spindle. I find nothing else in this application upon which patentability can be predicated. Kirkpatrick, Judge, dissenting. I cannot agree that the appellant’s contribution is anything beyond what could be expected of a person having ordinary skill in the art. The Lindgren and British references fully disclose the metal spinning technique used by the appellant to make a frusto-conical article from a flat disk. As described in the majority opinion, a round metal blank is first clamped on the top of a spindle having a frusto-conical shape. As the spindle and blank are rotated, a roller pushes the metal down along the sides of the spindle to form a hollow frusto-cone. If the finished article is to have tapered sides, it is hard for me to think of anything more obvious than to use a tapered disk to start with—the first of the two steps which the appellant says constitute the advance over the prior art made by his invention. Being provided with a tapered disk to work on, the necessity of moving the roller in a path not parallel to the sides of the spindle (the second step claimed by the appellant as novel) would seem to be equally obvious. In fact, if the taper of the disk is to be carried over into the finished article, it could not be done in any other way. In short, I cannot find anything un-obvious about the features which the appellant asserts constitute an advance over the prior art. The record supports the majority’s finding that what the appellant did is new, and its utility has not been challenged. However, novelty and usefulness do not add up to patentability. The majority opinion speaks of the appellant’s “solution to the problem of making a tapered wall frusto-cone.” It is true that in a doubtful case the fact that an invention solves a problem in the art may sometimes be taken as evidence that it was not obvious, but that is only where there is evidence of an old and recognized need which the invention satisfies and which others have tried without success" }, { "docid": "11641661", "title": "", "text": "of the compound he did disclose. Such proof clearly falls short of defeating a case of anticipation. With regard to the rejection of claim 7 under 35 USC 103, appellant asserts, that he has met his burden of demonstrating unobviousness by showing the unexpected non-toxicity of Ids composition and argues that he should not have to conduct experiments to determine the toxicity of rubber containing the isomer mentioned by Stahly. He also points out that he has demonstrated in his affidavits that the six-carbon, 1,3-dimethylbutyl compound of claims 2, 6 and 9 has unexpectedly different properties from its isomers and argues that this fact alone should be enough to support an inference that the properties of the seven-carbon, 1,4-dimethylamyl adjuvant of claim 7 would be similarly different from those of its isomers. Appellants’ first assertion is unacceptable. As we pointed out recently in In re Hoch, No. 8323, decided July 30, 1970, the mere fact that an applicant has discovered an unexpected property in a compound which is structurally similar to that disclosed in the prior art is not enough, in and of itself, to make his claimed subject matter unobvious. The law is clear in requiring a showing of unexpected differ- enees between the properties of the compound recited in the instant claimed composition and those possessed by the prior art. However, we can see no reason why such differences and their unexpected nature may not be demonstrated by other than a direct comparison. The problem is simply one of evidence and it should be a simple matter to accord various types of proofs their appropriate weight. In the present case, appellant’s indirect, circumstantial evidence has satisfied us that the composition of claim 7, more likely than not, does possess properties different from those possessed by a composition containing the seven-carbon isomer disclosed by the reference and that such differences would have been unexpected to one having ordinary skill in the art. We hold, therefore, that he has overcome the prima facie showing made by the Patent Office and that the rejection of claim 7 under 35 USC 103" }, { "docid": "890376", "title": "", "text": "building in fear of the device indicates that Mrs. Stylas’s expectation of harm was reasonable under the circumstances. Finally, even though inert, this device put life in danger as surely as a live weapon could. 18 U.S.C. § 2113(d). The threat to use any apparently deadly device is far more likely to lead to retaliation by deadly force, either by the victim, by rescuers, by the police, and, in return, by the robber, then assaultive language. Since a plausible threat to use such a device amplifies the danger to human life, and results in a more facile taking of property than mere assaul-tive language, it is appropriate that it be attended by a sterner penalty than simple, unaggravated bank robbery. The judgment of the District Court is affirmed. McCREE, Circuit Judge (concurring in part and dissenting in part). I believe that the majority opinion has correctly resolved all but the final issue it discusses. However, in discussing appellant’s second contention, I would not characterize the missing laboratory technician’s function as involving the performance of a test. If he had performed a test the issues of which were relevant, it would have been error not to have required him to testify because the test results would constitute an assertion,, verbal or otherwise, about a matter material in the litigation and evidence thereof would be hearsay. Nevertheless, it is clear that all the technician did was to apply a silver nitrate solution to the demand note to make patent the latent print. This was not an assertive act and as the majority opinion observes, it was only a routine task which was ob-' served by another officer who testified at the trial to what he saw. The critical testimony that appellant’s palm print matched that on the note was provided by an expert fingerprint examiner who was present at the trial and was thoroughly cross-examined by appellant’s counsel. I believe the majority opinion is in error in its resolution of the final issue whether the record supports the finding that Beasley violated 18 U.S.C. § 2113(d). That section reads as follows: Whoever," } ]

[ { "docid": "11709976", "title": "", "text": "act of which he or she is actually innocent. As the Eighth Circuit said in Jones, 929 F.2d at 381, “[i]t would be difficult to think of one who is more ‘innocent’ of a sentence than a defendant sentenced under a statute that by its very terms does not even apply to the defendant.” In Jones, the defendant had been erroneously sentenced under a habitual offender statute that was not in effect at the time he had committed his crime. Although the habitual offender provisions here are inapplicable for a different reason than in Jones, both defendants were sentenced under laws that should not have been applied to them, and the same principles apply. Circumstances of a case may dictate exceptions to the actual innocence rule. We agree with the government, for example, that the actual innocence exception in non-capital cases should not be available to a defendant who, although actually innocent of committing an aggravating act, was not prejudiced by its inclusion in the sentencing calculus. See Sawyer, — U.S. at-, 112 S.Ct. at 2525 (Court narrowed the actual innocence defense by holding that “petitioner has failed to show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty”); Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1992) (“actual innocence in a non-capital sentencing case can be no less stringent than the Supreme Court’s formulation of actual innocence in capital sentencing”). The government asserts that May-beck was not prejudiced by the denial of his § 2255 petition because he would have received an equivalent or greater sentence even if he had not been categorized as a career offender. This is not apparent from the record, however. Under the agreement negotiated between Maybeck and the government, Maybeck agreed to plead guilty to two counts of bank robbery and one count of unlawful possession of a firearm. Even if he had pled guilty to all of the counts alleged in the indictment, the maximum sentence he could have received is still less than the minimum" } ]

[ { "docid": "11710331", "title": "", "text": "to a federal habeas claim that the Government produced no evidence showing the date upon which a second offense occurred for purposes of enhancement); see also Ex Parte Williams, 703 S.W.2d 674, 679-81 (Tex.Crim.App.1986) (holding that a claim that the State presented no evidence of when a second prior felony was committed did not constitute a no evidence claim, but rather a collateral attack on the sufficiency of the evidence). In United States v. Maybeck, the Fourth Circuit applied the actual innocence exception to a procedural default where the defendant’s non-capital sentence was improperly enhanced on the basis of his miscalculated career offender status. 23 F.3d at 893-94. Maybeck pled guilty to bank robbery and the unlawful possession of a firearm. During the punishment phase of his trial, the defendant miseharacterized a prior conviction as involving violence. Id. That conviction along with a second prior conviction constituted the two predicate felonies necessary to qualify Maybeck as a career offender, a status used to enhance his sentence. Id. at 890-91. The Fourth Circuit determined that Maybeck was actually innocent of the predicate offense that qualified him as a career offender, and therefore, it was a miscarriage of justice to enhance his sentence under the career offender provision of the guidelines. Id. at 894. Haley’s circumstance is fundamentally equivalent to the circumstances addressed in Maybeck. During the punishment phase of his trial, Haley’s prior conviction for aggravated robbery was mischaraeter-ized as one involving a deadly weapon. That miseharacterization and his second predicate felony, delivery of methamphetamine, qualified Haley as a habitual felony offender under the Texas sentencing guidelines. In fact, the State has conceded that Haley was not convicted of aggravated robbery involving a deadly weapon. We conclude that a rational trier of fact could not have found beyond a reasonable doubt that Haley has been convicted of two felonies, an essential element of the habitual felony offender provision of the Texas sentencing guidelines because Haley is actually innocent of being convicted for aggravated robbery. In the present case, this finding of “actual innocence” only entitles Haley to a correction of the" }, { "docid": "23476422", "title": "", "text": "sentence that he received-fifteen to thirty years imprisonment. The awkward notion that one can be actually innocent of a sentence, although guilty of the underlying crime, has arisen most often in capital cases. See, e.g., Sawyer, 505 U.S. at 339, 112 S.Ct. 2514. The basic idea is that even a person guilty of an underlying crime can be “actually innocent” of a sentence because the facts presented at sentencing were erroneous and thus do not support the particular sentence imposed. Our precedent on this issue, however, does not support the manner in which Cristin has divorced actual innocence of the crime from actual innocence of the sentence. The latter has no application to this case. The only support presented by Cristin in support of finding a miscarriage of justice in his sentence is Sawyer, 505 U.S. at 347, 112 S.Ct. 2514, in which the Supreme Court applied the “actual innocence” analysis to a capital sentencing. In capital cases, which traditionally bifurcate the hearing of evidence on guilt from evidence of the aggravating or mitigating circumstances that might warrant imposition of the death penalty, the Supreme Court held that a showing of actual innocence of a requirement for a capital sentence would excuse procedural default. Id. The Court emphasized the unique nature of the death penalty, restricting its holding on actual innocence to “those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.” Id. The courts of appeals have split on the question of whether the miscarriage of justice rationale can extend to non-capital sentencings. Compare United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir.1994) (applying the actual innocence analysis to factual elements of a career offender determination); Mills v. Jordan, 979 F.2d 1273, 1278-79 (7th Cir.1992) (applying actual innocence to the elements of a habitual offender sentencing procedure), with Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.1999) (en banc) (limiting the “actual innocence of the sentence” rationale to capital cases); United States v. Richards, 5 F.3d 1369," }, { "docid": "22975070", "title": "", "text": "to noncapital sentencing procedures); Pilchak v. Camper, 935 F.2d 145, 148 (8th Cir.1991) (stating that the Eighth Circuit “while recognizing that the [actual innocence] exception ... is very narrow, has transported the exception into the sentencing phase of a trial” in case involving petitioner not properly the subject of a life sentence because represented by mentally impaired counsel). But see United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999) (limiting actual innocence exception in noncapital cases to review of eligibility for career offender or other habitual offender guideline provisions); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (“A person cannot be actually innocent of a noncapital sentence....”). Excusing Spence’s procedural default and reaching his constitutional claim is fully consonant with the narrow scope of the miscarriage of justice exception. In the context of capital sentencing, the Court has clarified that the exception exists not to introduce mitigating evidence excluded by the constitutional error, but to show that the defendant was actually ineligible for (ie., actually innocent of), the death penalty under state law. See Sawyer v. Whitley, 505 U.S. 333, 347, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Court has embraced an understanding that the miscarriage of justice exception is grounded on the critical function of habeas review for “ ‘correcting a fundamentally unjust incarceration.’ ” See Schlup v. Delo, 513 U.S. 298, 320-21, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (citing favorably Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Because the harshness of the sentence does not affect the habeas analysis and the ultimate issue, the. justice of the incarceration, is the same, there is no reason why the actual innocence exception should not apply to noncapital sentencing procedures. In Spence’s case, the constitutional error pertains to the fact that he was actually innocent of breaching the no misconduct condition in his plea agreement — the same breach that the trial judge used as the predicate for his incarceration. By challenging the determination of his responsibility for the act predicating his enhanced sentence, Spence raises precisely the question" }, { "docid": "23476423", "title": "", "text": "that might warrant imposition of the death penalty, the Supreme Court held that a showing of actual innocence of a requirement for a capital sentence would excuse procedural default. Id. The Court emphasized the unique nature of the death penalty, restricting its holding on actual innocence to “those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.” Id. The courts of appeals have split on the question of whether the miscarriage of justice rationale can extend to non-capital sentencings. Compare United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir.1994) (applying the actual innocence analysis to factual elements of a career offender determination); Mills v. Jordan, 979 F.2d 1273, 1278-79 (7th Cir.1992) (applying actual innocence to the elements of a habitual offender sentencing procedure), with Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.1999) (en banc) (limiting the “actual innocence of the sentence” rationale to capital cases); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (same). Indeed, the issue is not as simple as whether to apply Sawyer in a non-capital context; the courts of appeals have debated the types of sentences of which a petitioner can be innocent and whether a claim of innocence of the sentence is actually a disguised attack on the conviction’s validity. For example, in the Fourth Circuit, a holding extending Sawyer to non-capital elements of a career offender determination, Maybeck, 23 F.3d at 892-94, was limited by a later panel to “the context of eligibility for application of a career offender or other habitual offender guideline provision” and was held not to extend to non-factual challenges to the application of sentencing enhancements. United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999). Similarly, in the Eighth Circuit, an early case applying Sawyer to non-capital sentencings, Pilchak v. Camper, 935 F.2d 145, 148 (8th Cir.1991), was effectively overruled by that Court, en banc, because “Sawyer, in terms, applies only to the sentencing phase of death cases” and the “quarrel [in that case" }, { "docid": "22975069", "title": "", "text": "has required that the legal error the defendant raises (his constitutional claim) must have caused an actual error in determining guilt or eligibility for sentence, by “precluding] the development of true facts [or] resulting] in the admission of false ones.” See Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In so ruling, the Court has made clear that the availability of actual innocence excep tion depends not on the “nature of the penalty” the state imposes, but on whether the constitutional error “undermined the accuracy of the guilt or sentencing determination.” Id. at 538-39, 106 S.Ct. 2661. Lower federal courts have followed this principle by recognizing the applicability of the actual innocence- exception to the sentencing phase of noncapital cases. See United States v. Maybeck, 23 F.3d 888, 893 (4th Cir.1994) (finding no difference between holding defendant innocent of acts required to enhance a sentence in death case and applying parallel rationale in non-capital cases); Smith v. Collins, 977 F.2d 951, 958-59 (5th Cir.1992) (assuming actual innocence exception extends to noncapital sentencing procedures); Pilchak v. Camper, 935 F.2d 145, 148 (8th Cir.1991) (stating that the Eighth Circuit “while recognizing that the [actual innocence] exception ... is very narrow, has transported the exception into the sentencing phase of a trial” in case involving petitioner not properly the subject of a life sentence because represented by mentally impaired counsel). But see United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999) (limiting actual innocence exception in noncapital cases to review of eligibility for career offender or other habitual offender guideline provisions); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (“A person cannot be actually innocent of a noncapital sentence....”). Excusing Spence’s procedural default and reaching his constitutional claim is fully consonant with the narrow scope of the miscarriage of justice exception. In the context of capital sentencing, the Court has clarified that the exception exists not to introduce mitigating evidence excluded by the constitutional error, but to show that the defendant was actually ineligible for (ie., actually innocent of), the death penalty under state" }, { "docid": "10922009", "title": "", "text": "courts of appeals. Compare Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.1997) (en banc) (holding that actual innocence exception “applies only to the sentencing phase of death cases”), cert. denied, — U.S. -, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998), and United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (ruling that “[a] person cannot be actually innocent of a noncapital sentence”), with Mills v. Jordan, 979 F.2d 1273, 1278-79(7th Cir.1992) (holding that a showing of actual innocence of a predicate offense that is necessary for habitual offender sentencing enhancement may excuse procedural default). In United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir.1994),a panel of this court ruled that the actual innocence exception may be applied in § 2255 to non-capital sentencing proceedings and that Maybeck was actually innocent of being a career offender, see U.S.S.G. § 4B1.1, because one of the predicate offenses necessary to qualify him for career offender status actually was not a crime of violence. See Maybeck, 23 F.3d at 892-93. Appel-lees argue that Maybeck stands for the proposition that the actual innocence exception applies to excuse a procedural default whenever a movant is “innocent” of any sentencing adjustment alleged to be error. And, because the § 3A1.3 enhancement for restraint of victim was erroneously applied to them, they conclude that they are “actually innocent” of that adjustment. Appellees’ reading of Maybeck cannot be correct. If the actual innocence exception is available anytime a guideline is misapplied (such that the defendant is “actually innocent” of the application of the guideline), the actual innocence exception would swallow the rule that issues not raised on appeal cannot be considered in a § 2255 motion absent a showing of cause and prejudice to excuse the default. Such a reading of Maybeck would mean that whenever a movant is prejudiced by the misapplication of a sentencing guideline and does not raise the error on direct appeal, a federal court may nevertheless correct the error during a § 2255 proceeding, entirely eliminating the cause portion of the cause and prejudice requirement. We decline to give Maybeek such" }, { "docid": "23476424", "title": "", "text": "1371 (10th Cir.1993) (same). Indeed, the issue is not as simple as whether to apply Sawyer in a non-capital context; the courts of appeals have debated the types of sentences of which a petitioner can be innocent and whether a claim of innocence of the sentence is actually a disguised attack on the conviction’s validity. For example, in the Fourth Circuit, a holding extending Sawyer to non-capital elements of a career offender determination, Maybeck, 23 F.3d at 892-94, was limited by a later panel to “the context of eligibility for application of a career offender or other habitual offender guideline provision” and was held not to extend to non-factual challenges to the application of sentencing enhancements. United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999). Similarly, in the Eighth Circuit, an early case applying Sawyer to non-capital sentencings, Pilchak v. Camper, 935 F.2d 145, 148 (8th Cir.1991), was effectively overruled by that Court, en banc, because “Sawyer, in terms, applies only to the sentencing phase of death cases” and the “quarrel [in that case was] not really with his sentence, it [was] with the fact that he was convicted.” Embrey, 131 F.3d at 740. We need not venture into the thicket of whether Sawyer’s rationale applies with equal validity to non-capital sentencing, because the “actual innocence” rationale, remains firmly rooted in the testing of allegedly erroneous factual determinations, whether it be factual determinations of guilt at the conviction stage or factual determinations underlying eligibility for the death penalty. See Sawyer, 505 U.S. at 339, 112 S.Ct. 2514; Bousley, 523 U.S. at 623, 118 S.Ct. 1604. Those courts that have extended Sawyer’s holding on the “actual innocence” of a sentence have uniformly done so in the context of testing the factual findings on which a particular non-capital sentence is based, such as prior convictions. See Mikalajunas, 186 F.3d at 495 (limiting a petitioner’s argument of actual innocence of a sentence to “eligibility for application of career offender guideline provision”); Mills, 979 F.2d at 1278-79 (“In both [Sauryer and Mills] the sentencing decision resembled a factual determination of guilt or innocence.”)." }, { "docid": "21021701", "title": "", "text": "Jackson does not attempt to explain why he did not raise the 1/3-ratio argument earlier. Rather, he simply asserts that it would be a fundamental miscarriage of justice to require him to serve a sentence of which he is actually innocent. I agree. The actual innocence exception set forth in Coleman extends to the sentencing phase of a trial. See Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992) (ruling that the “actual innocence exception applies to habitual offender proceedings ... whether or not they involve the possibility of capital punish ment”); Jones v. Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991) (holding that defendant was actually innocent of sentence under habitual offender statute where that statute did not apply); cf. United States v. Maybeck, 23 F.3d 888, 894 (4th Cir.1994) (finding petitioner was actually innocent of being a career offender because he had only one relevant prior felony conviction instead of the required two), cert. denied, — U.S. -, 116 S.Ct. 1555, 134 L.Ed.2d 657 (1996); Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1993) (assuming, without deciding, that actual innocence exception is available in non-capital sentencing case), cert. denied, 510 U.S. 829, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993). As I have shown above, § 99-19-83, by its own terms, does not apply to Jackson. Moreover, “[i]t would be difficult to think of one who is more ‘innocent’ of a sentence than a defendant sentenced under a statute that by its very terms does not even apply to the defendant.” Jones, 929 F.2d at 381. In this circuit, though, Jackson must also show that he could not have received a sentence of life imprisonment without possibility of parole under a provision other than § 99-19-83. See Smith, 977 F.2d at 959 (noting that “for a defendant to demonstrate actual innocence of the sentence imposed he would have to show that but for the constitutional error he would not have been legally eligible for the sentence he received”). Jackson can do so. If the state courts had recognized that Jackson could not have served at least one" }, { "docid": "17263752", "title": "", "text": "crime of violence, the court rejected that argument because “it [did] not appear that Maybeck actually possessed a weapon or threatened use of physical force at the time.” Id. at 892 n. 8. The Fourth Circuit has subsequently emphasized the narrowness of its holding in Maybeck and stated that “the legal argument” that a predicate conviction was misclassified “is not cognizable as a claim of actual innocence.” United States v. Pettiford, 612 F.3d 270, 284 (4th Cir.2010) (citing United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999)). Second, Mr. Tellado contests the Government’s argument that to establish actual innocence, he would need to “show that he did not actually distribute drugs or possess with intent to distribute drugs before his arrest for the prior conviction,” Movant’s Reply [doc. # 22] at 29, arguing that “[his] actual past conduct is irrelevant for the career offender enhancement,” id. Here, Mr. Tellado conflates two separate standards. A court that is considering whether a petitioner’s “actual innocence” provides a gateway for consideration of an otherwise barred claim on collateral attack of the petitioner’s sentence engages in a different inquiry than a sentencing court that is determining whether to apply a career offender enhancement under the Guidelines. Compare Doe, 391 F.3d at 162 (“Once it has been determined that the new evidence is reliable ... reviewing courts [must] consider [a claim of actual innocence] in light of the evidence in the record as a whole, including evidence that might have been inadmissible at trial.”), with Shepard, 544 U.S. at 25-26, 125 S.Ct. 1254 (describing the limited evidence a sentencing court may consider to determine whether a prior conviction constitutes a predicate offense within the scope of the federal enhancement). Because, as already noted, Mr. Tellado has not even suggested — let alone presented any evidence — that he was innocent in fact of exchanging drugs for money during the predicate offenses at issue, his claim of actual innocence is without merit. II. The Government’s second argument for why Mr. Tellado cannot gain the benefit of Savage is that, as part of his plea agreement," }, { "docid": "10922008", "title": "", "text": "even when habeas petitioner cannot excuse procedural default by demonstrating cause and prejudice, court may review merits of claim if petitioner can show actual innocence). Typically, to establish actual innocence a petitioner must demonstrate actual factual innocence of the offense of conviction, ie., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent. See id. at 339-41, 112 S.Ct. 2514. Although recognizing that the concept of actual innocence does not lend itself easily to sentencing determinations, the Supreme Court has held that a petitioner may establish actual innocence in the capital sentencing context by demonstrating by clear and convincing evidence that but for an alleged error committed during his sentencing “no reasonable juror would have found him eligible for the death penalty under” applicable law. Id. at 350, 112 S.Ct. 2514. The Court has not addressed whether the actual innocence exception can be applied to sentencing outside the capital context, and this question has divided the courts of appeals. Compare Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th Cir.1997) (en banc) (holding that actual innocence exception “applies only to the sentencing phase of death cases”), cert. denied, — U.S. -, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998), and United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (ruling that “[a] person cannot be actually innocent of a noncapital sentence”), with Mills v. Jordan, 979 F.2d 1273, 1278-79(7th Cir.1992) (holding that a showing of actual innocence of a predicate offense that is necessary for habitual offender sentencing enhancement may excuse procedural default). In United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir.1994),a panel of this court ruled that the actual innocence exception may be applied in § 2255 to non-capital sentencing proceedings and that Maybeck was actually innocent of being a career offender, see U.S.S.G. § 4B1.1, because one of the predicate offenses necessary to qualify him for career offender status actually was not a crime of violence. See Maybeck, 23 F.3d at 892-93. Appel-lees argue that Maybeck stands for" }, { "docid": "11710325", "title": "", "text": "the aggravating factors necessary for a capital sentence. See Sawyer v. Whitley, 505 U.S. 333, 345, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Court did not foreclose the application of the actual innocence exception to noncapital sentencing cases. More importantly, the Court has noted that the purpose of the rule “is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (citation omitted). With this fundamental purpose in mind, we agree with the Fourth Circuit which has held that the actual innocence exception applies to non capital cases only in the context of a habitual offender finding during the punishment phase of the trial. The State further notes that other Circuit Courts are split on the issue of whether, in the sentencing context, the actual innocence exception applies to capital cases only or also to noncapital cases. Compare Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 171 (2nd Cir.2000) (holding that the actual innocence exception applies to noncapital sentencing when a predicate act for enhancement is at issue) ivith Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997)(en banc) (holding that the actual innocence exception applies “to the sentencing phase of death cases”) cert. denied, 525 U.S. 828, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998). The Eighth, Seventh, and Tenth Circuits have held that in the sentencing context, the actual innocence exception applies only to sentencing in capital cases. See Embrey, 131 F.3d at 740; Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997) (determining that the actual innocence exception to noncapital sentencing proceedings did not survive the enactment of the AEDPA); Reid v. Oklahoma, 101 F.3d 628, 630 (10th Cir.1996) (holding that the actual-innocence exception does not apply in cases involving challenges to non-capital sentences). In contrast, the Fourth and Second Circuits have applied the actual innocence exception to sentencing in noncapital cases. See Spence, 219 F.3d at 171, United States v. Mikalajunas, 186 F.3d 490, 494-95" }, { "docid": "17263747", "title": "", "text": "“actual innocence” can be applied to habeas claims asserting errors during the penalty phase in non-capital cases, it has allowed only that a petitioner may show that he is actually innocent of the crime or act for which he received an enhanced sentence. See Poindexter, 333 F.3d at 380. Thus, in Poindexter v. Nash, the Second Circuit rejected the “proposition that ‘misclassification as [a] career offender is equivalent to a claim of actual innocence.’ ” Id. (alteration in original) (citation omitted). Like Mr. Tellado, Mr. Poindexter had been convicted of a federal narcotics offense and sentenced as a career offender, see id. at 374-75, and like Mr. Tellado, he argued that he was “innocent of being a career offender — the Guidelines factor that increased his sentence.” Id. at 380. In making that argument, Mr. Poindexter relied on the Second Circuit’s decision in Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162 (2d Cir.2000) and the Fourth Circuit’s decision in United States v. Maybeck, 23 F.3d 888, (4th Cir.1994). Those opinions “applied the concept of ‘actual innocence’ to the penalty phase of noncapital offenses,” but, the Second Circuit explained, the Spence and Maybeck courts only “grant[ed] collateral relief to applicants who showed that they in fact had not committed the crimes on which the calculation or imposition of their sentences was based.” Poindexter, 333 F.3d at 381; see also Spence, 219 F.3d at 172 (directing the district court to grant Mr. Spence’s habeas petition because he “clearly and convincingly demonstrate^]” that he was “actually innocent of the act for which he received an enhanced sentence”). Mr. Poindexter argued that he had been wrongly classified as a career offender because the three convictions underlying his career offender enhancement should have been treated as a single conviction. See Poindexter, 333 F.3d at 381. The Second Circuit rejected Mr. Poindexter’s argument that such a misclassification could establish “actual innocence,” noting that Mr. Poindexter “mad[e] no suggestion whatever that he did not actually commit those three prior crimes.” M Like Mr. Poindexter, Mr. Tellado does not assert that he is actually innocent of" }, { "docid": "22813378", "title": "", "text": "Justice, Institutions Div., Civ. No. 6:00cv518 (ED Tex., Sept. 13, 2001), p. 10, App. to Pet. for Cert. 49a (citing Sones v. Hargett, 61 F. 3d 410, 419 (CA5 1995)). Because she recommended relief on the erroneous enhancement claim, the Magistrate Judge did not address respondent’s related ineffective assistance of counsel challenges. App. to Pet. for Cert. 50a-52a. The District Court adopted the Magistrate Judge’s report, granted the application, and ordered the State to re-sentence respondent “without the improper enhancement.” Id., at 36a-37a (Oct. 27, 2001). The Court of Appeals for the Fifth Circuit affirmed, holding narrowly that the actual innocence exception “applies to noncapital sentencing procedures involving a career or habitual felony offender.” Haley v. Cockrell, 306 F. 3d 257, 264 (2002). The Fifth Circuit thus joined the Fourth Circuit in holding that the exception should not extend beyond allegedly erroneous recidivist enhancements to other claims of noncapital factual sentencing error: “[T]o broaden the exception further would ‘swallow’ the ‘cause portion of the cause and prejudice requirement’ and it ‘would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural default.’ ” Id., at 266 (quoting United States v. Mikalajunas, 186 F. 3d 490, 494-495 (CA4 1999)). Finding the exception satisfied, the panel then granted relief on the merits of respondent’s otherwise defaulted sufficiency of the evidence claim. In so doing, the panel assumed that challenges to the sufficiency of noncapital sentencing evidence are cognizable on federal habeas under Jackson v. Virginia, 443 U. S. 307 (1979). 306 F. 3d, at 266-267 (citing French v. Estelle, 692 F. 2d 1021, 1024-1025 (CA5 1982)). The Fifth Circuit’s decision exacerbated a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context. Compare Embrey v. Hershberger, 131 F. 3d 739 (CA8 1997) (en banc) (no actual innocence exception for noncapital sentencing error); Reid v. Oklahoma, 101 F. 3d 628 (CA10 1996) (same), with Spence v. Superintendent, Great Meadow Correctional Facility, 219 F. 3d 162 (CA2 2000) (actual innocence exception applies" }, { "docid": "11710328", "title": "", "text": "not affect the habeas analysis and the ultimate issue, the justice of the incarceration, is the same.” Id. The Fourth Circuit initially extended the actual innocence standard to noncapital cases reasoning that application of the actual innocence exception to the aggravating factors of a capital sentencing case is functionally equivalent to applying the exception to aggravating factors enhancing a noncapital sentence under the guidelines. See Maybeck, 23 F.3d at 893. Thus, applying the actual innocence exception in either case meets the “objective of protecting defendants from sentencing based on elements of crimes for which they are conclusively innocent.” Id. at 894. However, the Fourth Circuit narrowed the exception to noncapital cases “only in the context of eligibility for application of a career offender or other habitual offender guideline provision.” Mikalajunas, 186 F.3d at 495. The court reasoned that to broaden the exception further would “swallow” the “cause portion of the cause and prejudice requirement” and it “would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural default.” Id. at 494-95. We find the approach of the Fourth Circuit persuasive. The State argues on appeal, that Sones is not binding on this Court because it expressly declined to hold that the actual-innocence exception applied to noncapital sentencing. Although in Smith and Sones, we have assumed that the actual innocence standard extends to non-capital sentencing, in both of those cases, we ultimately concluded that the petitioner in question was not “actually innocent.” See Smith, 977 F.2d at 959; Sones, 61 F.3d at 419-21. In this case, we conclude that although Haley is procedurally barred from raising his insufficiency-of-the-evidence claim, the actual innocence exception to the procedural bar applies. Having concluded that the actual innocence exception applies to this case, we must now consider the merits of Haley’s insufficiency-of-the-evidence claims. This Court has held that the granting of habeas relief is appropriate where the State has failed to produce sufficient evidence of the petitioner’s habitual offender status. See French v. Estelle, 692 F.2d 1021, 1024-25 (5th Cir.1982). III. Insufficiency Of The Evidence The State" }, { "docid": "11710327", "title": "", "text": "(4th Cir.1999) (limiting Maybeck to the “context of eligibility for application of a career offender or other habitual offender guideline provision.”) cert. denied, 529 U.S. 1010, 120 S.Ct. 1283, 146 L.Ed.2d 230 (2000); United States v. Maybeck, 23 F.3d 888, 893-94 (4th Cir.1994) (holding that actual innocence of a noncapital sentence applies to eligibility for sentencing as a career or habitual offender). The Second Circuit extended the actual innocence exception to noncapital sentencing proceedings. See Spence, 219 F.3d at 171. The court reasoned that the “[Supreme] Court has made clear that the availability of [the] actual innocence exception depends not on the ‘nature of the penalty,’ the state imposes, but on whether the constitutional error ‘undermined the accuracy of the guilt or sentencing determination.’ ” Id. (quoting Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986)). Thus, finding no reason to limit the exception to capital cases, the Spence court broadly applied the actual innocence exception to the sentencing phase of noncapital cases “[bjecause the harshness of the sentence does not affect the habeas analysis and the ultimate issue, the justice of the incarceration, is the same.” Id. The Fourth Circuit initially extended the actual innocence standard to noncapital cases reasoning that application of the actual innocence exception to the aggravating factors of a capital sentencing case is functionally equivalent to applying the exception to aggravating factors enhancing a noncapital sentence under the guidelines. See Maybeck, 23 F.3d at 893. Thus, applying the actual innocence exception in either case meets the “objective of protecting defendants from sentencing based on elements of crimes for which they are conclusively innocent.” Id. at 894. However, the Fourth Circuit narrowed the exception to noncapital cases “only in the context of eligibility for application of a career offender or other habitual offender guideline provision.” Mikalajunas, 186 F.3d at 495. The court reasoned that to broaden the exception further would “swallow” the “cause portion of the cause and prejudice requirement” and it “would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural" }, { "docid": "11710324", "title": "", "text": "standard to noncapital cases was dicta in Smith and Sones. Nevertheless, the magistrate judge applied the standard and concluded that it is clear from the record that Haley was “actually innocent” of the predicate felony conviction necessary to enhance his conviction from a state jail felony to a second-degree felony. By extension, the magistrate judge concluded that because Haley is “actually innocent” of having two prior felony convictions, Haley’s sentence was improperly enhanced as a habitual felony offender. The district court adopted the magistrate judge’s finding and granted habeas relief as to the claim that Haley’s sentence was improperly enhanced. We agree with the district court that, based on the unquestionable improper enhancement of Haley’s sentence, he has shown that, but for the con stitutional error, he would not have been legally eligible for the sentence he received. The State argues that this issue has not been addressed by the Supreme Court. Although the Court has not expressly extended the actual innocence exception to noncapital offenses, it considered whether a petitioner was actually innocent of the aggravating factors necessary for a capital sentence. See Sawyer v. Whitley, 505 U.S. 333, 345, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Court did not foreclose the application of the actual innocence exception to noncapital sentencing cases. More importantly, the Court has noted that the purpose of the rule “is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (citation omitted). With this fundamental purpose in mind, we agree with the Fourth Circuit which has held that the actual innocence exception applies to non capital cases only in the context of a habitual offender finding during the punishment phase of the trial. The State further notes that other Circuit Courts are split on the issue of whether, in the sentencing context, the actual innocence exception applies to capital cases only or also to noncapital cases. Compare Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d" }, { "docid": "10922017", "title": "", "text": "Accordingly, we reverse. REVERSED. . Although Mikalajunas noted an appeal, he voluntarily dismissed it. . Likewise, we reject Mikalajunas' claim on cross appeal that the district court erred in concluding that he was not deprived of the effective assistance of counsel by counsel’s failure to raise on direct appeal an allegation that § 3A1.3 should not have been applied to enhance his offense level. . The Fifth Circuit has ruled that, assuming without deciding that the actual innocence exception is available in a noncapital sentencing context, a showing of actual innocence would require a demonstration that but for alleged error the defendant \"would not have been legally eligible for the sentence he received.” Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1992). . The Government also contends that the actual innocence exception cannot be applied here because it applies only when the defendant is asserting a constitutional violation. In support of its claim, the Government contends that the Supreme Court has recognized the availability of the actual innocence exception only in cases in which an alleged constitutional violation was at issue. The Court, however, has not refused to apply the actual innocence exception in a nonconstitutional context; that issue simply has never been before the Court. And, the Government’s argument cannot be squared with Maybeek, in which this court excused a procedural default based upon the actual innocence exception involving the misapplication of the career offender provision, not a constitutional error. Consequently, Maybeek forecloses the Government’s argument on this score. . Mikalajunas also asserts that at resentenc-ing the district court should have applied the guideline manual in effect at the time and awarded him a three-level reduction for acceptance of responsibility, rather than the two-level reduction available at the time of his original sentencing. Compare U.S.S.G. § 3E1.1 (1989) with U.S.S.G. § 3E1.1 (1995). Because there was no basis for a grant of relief under § 2255, and accordingly no cause for resentencing, we need not address this argument. MURNAGHAN, Circuit Judge, dissenting: I want to make clear what results from the majority opinion. The Appellees, the government, the lower" }, { "docid": "10922010", "title": "", "text": "the proposition that the actual innocence exception applies to excuse a procedural default whenever a movant is “innocent” of any sentencing adjustment alleged to be error. And, because the § 3A1.3 enhancement for restraint of victim was erroneously applied to them, they conclude that they are “actually innocent” of that adjustment. Appellees’ reading of Maybeck cannot be correct. If the actual innocence exception is available anytime a guideline is misapplied (such that the defendant is “actually innocent” of the application of the guideline), the actual innocence exception would swallow the rule that issues not raised on appeal cannot be considered in a § 2255 motion absent a showing of cause and prejudice to excuse the default. Such a reading of Maybeck would mean that whenever a movant is prejudiced by the misapplication of a sentencing guideline and does not raise the error on direct appeal, a federal court may nevertheless correct the error during a § 2255 proceeding, entirely eliminating the cause portion of the cause and prejudice requirement. We decline to give Maybeek such an absurdly broad reading. Rather, we conclude that under the reasoning of Maybeek actual innocence applies in non-capital sentencing only in the context of eligibility for application of a career offender or other habitual offender guideline provision. The error at issue in Maybeek involved the application of the career offender provision. And, in reaching its holding, the panel in Maybeek relied on decisions that had extended the actual innocence exception to noncapital sentencing in the context of habitual offender provisions and that stressed the necessity of defining the actual innocence exception narrowly in the context of noncapital sentencing. See id. at 893(citing Waring v. Delo, 7 F.3d 753, 757 (8th Cir.1993), warning “that the actual innocence exception in a noncapital sentencing case must be defined by a narrow, objective standard”; Mills, 979 F.2d at 1279, holding “that the actual innocence exception applies to habitual offender proceedings ... whether or not they involve the possibility of capital punishment”; and Jones v. Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991), ruling that a defendant was" }, { "docid": "10922011", "title": "", "text": "an absurdly broad reading. Rather, we conclude that under the reasoning of Maybeek actual innocence applies in non-capital sentencing only in the context of eligibility for application of a career offender or other habitual offender guideline provision. The error at issue in Maybeek involved the application of the career offender provision. And, in reaching its holding, the panel in Maybeek relied on decisions that had extended the actual innocence exception to noncapital sentencing in the context of habitual offender provisions and that stressed the necessity of defining the actual innocence exception narrowly in the context of noncapital sentencing. See id. at 893(citing Waring v. Delo, 7 F.3d 753, 757 (8th Cir.1993), warning “that the actual innocence exception in a noncapital sentencing case must be defined by a narrow, objective standard”; Mills, 979 F.2d at 1279, holding “that the actual innocence exception applies to habitual offender proceedings ... whether or not they involve the possibility of capital punishment”; and Jones v. Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991), ruling that a defendant was actually innocent of a habitual offender provision that did not apply to him). Most importantly, a broader reading of Maybeek would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural default. Accordingly, we reject Appellees’ contention that they have demonstrated actual innocence to excuse their failure to raise on direct appeal a challenge to the application of the § 3A1.3 enhancement. III. The Government also asserts that even if Appellees had not procedurally defaulted their claim that the § 3A1.3 enhancement did not apply to them, they would not be entitled to relief because misapplication of the sentencing guidelines does not amount to a miscarriage of justice. Section 2255 provides a means for one convicted of a federal offense to collaterally attack a conviction or sentence that, inter alia, “was imposed in violation of the Constitution or laws of the United States,” and thus § 2255 relief is not limited to constitutional error in a conviction or sentence. 28 U.S.C.A. § 2255; see Davis v. United" }, { "docid": "11710326", "title": "", "text": "162, 171 (2nd Cir.2000) (holding that the actual innocence exception applies to noncapital sentencing when a predicate act for enhancement is at issue) ivith Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997)(en banc) (holding that the actual innocence exception applies “to the sentencing phase of death cases”) cert. denied, 525 U.S. 828, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998). The Eighth, Seventh, and Tenth Circuits have held that in the sentencing context, the actual innocence exception applies only to sentencing in capital cases. See Embrey, 131 F.3d at 740; Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997) (determining that the actual innocence exception to noncapital sentencing proceedings did not survive the enactment of the AEDPA); Reid v. Oklahoma, 101 F.3d 628, 630 (10th Cir.1996) (holding that the actual-innocence exception does not apply in cases involving challenges to non-capital sentences). In contrast, the Fourth and Second Circuits have applied the actual innocence exception to sentencing in noncapital cases. See Spence, 219 F.3d at 171, United States v. Mikalajunas, 186 F.3d 490, 494-95 (4th Cir.1999) (limiting Maybeck to the “context of eligibility for application of a career offender or other habitual offender guideline provision.”) cert. denied, 529 U.S. 1010, 120 S.Ct. 1283, 146 L.Ed.2d 230 (2000); United States v. Maybeck, 23 F.3d 888, 893-94 (4th Cir.1994) (holding that actual innocence of a noncapital sentence applies to eligibility for sentencing as a career or habitual offender). The Second Circuit extended the actual innocence exception to noncapital sentencing proceedings. See Spence, 219 F.3d at 171. The court reasoned that the “[Supreme] Court has made clear that the availability of [the] actual innocence exception depends not on the ‘nature of the penalty,’ the state imposes, but on whether the constitutional error ‘undermined the accuracy of the guilt or sentencing determination.’ ” Id. (quoting Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986)). Thus, finding no reason to limit the exception to capital cases, the Spence court broadly applied the actual innocence exception to the sentencing phase of noncapital cases “[bjecause the harshness of the sentence does" } ]

[ { "docid": "22900799", "title": "", "text": "to mandate such a practice. III Finally, Commodore argues that the district court’s review of the magistrate’s first report was deficient because it applied an incorrect standard of review. Relying on Fed.R.Civ.P. 52(a), Commodore contends that the district court could not overturn the magistrate’s original findings of fact unless they were clearly erroneous. This argument is without merit for reasons given above: the district court did not overturn the magistrate’s findings of fact when it remanded the case for reconsideration. In any case, Fed.R.Civ.P. 52(a) does not state the standard of review that a district court must apply when it considers a magistrate’s findings and recommendations. That standard is provided in the Magistrates Act, 28 U.S.C. § 636(b). Although the statute calls for application of the clearly erroneous standard when a district court reviews the magistrate’s report on certain pretrial, nondispositive motions, in all other cases, the statute grants the broadest possible discretion to the reviewing district court. When either party objects to any portion of the magistrate’s report, the district court is charged to make a de novo determination of that portion. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” 28 U.S.C. § 636(b). There can be no doubt whatsoever that the district court in this case acted well within the mandate of this statute when it remanded the case for further consideration by the magistrate. Commodore thus has presented no meritorious arguments for reversal of the judgment entered in this case. Accordingly, that judgment is AFFIRMED. . The stipulation form provided by the Northern District of California read as follows: The undersigned counsel being fully aware of the right to trial of the captioned proceeding before a Judge of the United States District Court for this District, and in behalf of their clients, do hereby specifically waive trial before the District Judge and consent to jury_ court xx trial before United States Magistrate Frederick J. Woelflen. . The relevant portions" } ]

[ { "docid": "3542447", "title": "", "text": "Defendants’ motion and Plaintiffs’ objections thereto are discussed below. DISCUSSION I. Standards of Review In reviewing a plaintiffs objection to a report and recommendation issued by a magistrate judge, the district court applies the standard of review set forth in 28 U.S.C. § 636(b)(1) and Rule 72(b)(3) of the Federal Rules of Civil Procedure. Under both provisions, a district court is to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); accord Fed.R.Civ.P. 72(b)(3). Upon de novo review, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A district court, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In conducting de novo review of those portions of the R & R which recommend granting summary judgment, this Court is mindful that summary judgment is appropriate only when “there is no genuine issue as to any material fact and the movant party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, ie., whether it concerns facts that can affect the outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999) (internal quotation marks omitted; brackets added). The moving party bears the burden of showing that there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the movant meets this burden, the non-movant must set forth specific facts showing that there is a genuine issue" }, { "docid": "10475976", "title": "", "text": "1986. Rather, plaintiff is entitled to benefit payments commencing February 25, 1986, at the end of the five-month waiting period required by 42 U.S.C. § 423. See 42 U.S.C. § 423(b) (“An individual who would have been entitled to a disability insurance benefit for any month had he filed application therefor before the end of such month shall be entitled to such benefits for such month if such application is filed before the end of the 12th month immediately succeeding such month.”). Plaintiffs second objection is based on a mistaken belief that Magistrate Jelderks recommended her benefits . run only through March 3,1992, the date of her hearing before the ALJ. Rather, Magistrate Jelderks “ex-pressfed] no opinion as to plaintiffs condition subsequent to March 3, 1992” and recommended that the ease be remanded for a determination of benefits. I agree with Magistrate Jelderks’ recommendation. I ADOPT Magistrate Jelderks’ Findings and Recommendations dated June 24, 1993, as modified by this Order. IT IS SO ORDERED. • FINDINGS AND RECOMMENDATION JELDERKS, United States Magistrate Judge: Plaintiff Carol Ratto brings this action for judicial review of the Secretary’s final decision denying Title II disability insurance benefits. This court has jurisdiction under 42 U.S.C. § 405(g). For the reasons set forth below, the decision of the Secretary should be reversed and remanded for a determination of benefits. PROCEDURAL BACKGROUND Plaintiff first applied for Title II benefits on March 17, 1986. Tr. 114-17. The application was denied, both initially and upon reconsideration. Tr. 125-28, 138-39. Plaintiff subsequently filed a new application for Title II benefits, with a protective filing date of October 31, 1989'. ■ Tr. 163-67. This claim was also denied initially, upon reconsideration, and upon re-reconsideration. Tr. 177-80, 190-91, 323-24. ALJ Kramer held a hearing on March 3, 1992. Tr. 53. On July 15, 1992, the ALJ issued an opinion finding plaintiff not disabled. Tr. 21-30. On October 6, 1992, the Appeals Council declined review. Tr. 5-6. STATEMENT OF THE FACTS Plaintiff was born January 27, 1947, making her 45 years old at the time of the hearing.. Tr. 114. She has a" }, { "docid": "6997895", "title": "", "text": "OPINION AND ORDER REDDEN, Senior District Judge: On June 4, 2007, Magistrate Judge Papak issued his Findings and Recommendation (doc. 74) in the above-captioned case, recommending defendant’s motion for summary judgment (doc. 43) be denied. Magistrate Judge Papak also recommended defendant’s alternative motion for partial summary judgment be granted as to each of plaintiffs claims alleging defendant’s violation of 15 U.S.C. § 1681e(b), but denied in all other respects. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. The magistrate judge only makes recommendations to the district court, and any party may file written objections to those recommendations. When a party timely objects to any portion of the magistrate’s judge’s Findings and Recommendation, the district court must conduct a de novo review of the portions of the Findings and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The district court is not required to review the factual and legal conclusions of the magistrate judge, to which the parties do not object. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). The parties timely filed objections. Upon review of the parties objections, I agree with Magistrate Papak’s analysis and recommendation. Thus, I ADOPT Magistrate Judge Papak’s Findings and Recommendation as my own opinion. IT IS SO ORDERED. FINDINGS AND RECOMMENDATION PAPAK, United States Magistrate Judge: In August 2005, plaintiff George H. Saenz filed this Fair Credit Reporting Act (“FCRA”) action against defendants Trans Union, LLC (“Trans Union”), Experian Information Solutions, Inc. (“Experian”), Equifax Information Services LLC (“Equifax”), and NCO Financial Systems, Inc. (“NCO”). By stipulation of the parties, Saenz’ claims against Equifax, Experian, and NCO have been dismissed with prejudice. Trans Union is therefore the only defendant now remaining in this action. Saenz raises claims under 15 U.S.C. § 1681o (alleging negligent violation of the FCRA)" }, { "docid": "7704833", "title": "", "text": "no derivative action may be brought on behalf of Aquarius 100. DISCUSSION To accept the report and recommendation of a magistrate to which no timely objection has been made, a District Court need only satisfy itself that there is no dear error on the face of the record. See Rule 72, Fed.R.Civ.P., Notes of Advisory Committee on Rules (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974)). However, when timely objection has been made to a portion or portions of a magistrate’s report, the District Judge must “make a de novo determination ... of any portion of the magistrate’s disposition to which specific written objection has been made.” Rule 72(b), Fed.R.Civ.P.; see also 28 U.S.C. § 636(b)(1). The Judge may then accept, reject, or modify, in whole or in part, the magistrate’s proposed findings and recommendations. 28 U.S.C. § 636(b)(1). A District Court’s obligation to make a de novo determination of properly contested portions of a magistrate’s report does not require that the Judge conduct a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). It is sufficient that the District Court “arrive at its own, independent conclusion about those portions of the magistrate’s report to which objection is made.” Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). To this end, the Court must “exercise ... sound judicial discretion with respect to whether reliance should be placed on [the magistrate’s] findings.” American Express Int’l Banking Corp. v. Sabet, 512 F.Supp. 472, 473 (S.D.N.Y.) aff'd without opinion, 697 F.2d 287 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982). In the instant case, plaintiffs have filed timely written objections to the magistrate’s Report. The Court has reviewed de novo those portions of the Report to which plaintiffs’ objections pertain. A. Personal Jurisdiction over the BNST and the Conyers Dill Defendants On a motion to dismiss pursuant to Rule 12(b)(2), Fed.R.Civ.P., all pleadings and affidavits are construed" }, { "docid": "22242348", "title": "", "text": "that she had been denied effective assistance of counsel by various errors of her trial attorney which deprived her of the right to make critical decisions in her case, including the decision whether to testify and present her account of rape to the jury. DeLuca also argued that the trial court’s refusal to allow the rape trauma syndrome expert to testify had deprived her of her right to present a defense. This Court referred the matter to Magistrate Judge Roberts on January 24,1991 and an evidentiary hearing was held on July 21, 22, 23 and 29, 1992. As noted above, on December 21, 1993, Magistrate Judge Roberts issued her Report recommending that the petition be denied. The Report found that the performance of petitioner’s counsel had not been constitutionally deficient, and that the refusal to allow rape trauma syndrome evidence had not deprived petitioner of any constitutional rights. Petitioner has filed objections with the Court, in which she argues that the magistrate judge’s factual findings overlooked critical portions of the record and that her legal recommendations are not supported by the facts in this case or the law. She urges that the petition be granted and that this Court order a new trial. DISCUSSION I. Standards for Reviewing a Magistrate Judge’s Report and Recommendation When timely objection has been made to a portion or portions of a magistrate judge’s report, the district judge must “make a de novo determination ... of any portion of the magistrate’s disposition to which specific written objection has been made.” Rule 72(b), Fed.R.Civ.P. See also, 28 U.S.C. § 636(b)(1). In addition, 28 U.S.C. § 636(b)(1) affords the district court broad latitude in considering a magistrate judge’s recommendation, even if no party objects to it. Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). The judge may then accept, reject, or modify, in whole or in part, the magistrate judge’s proposed findings and recommendations. However, the district court’s obligation to make a de novo determination of properly contested portions of a magistrate judge’s report does not require the judge to conduct a de novo hearing on" }, { "docid": "20287907", "title": "", "text": "a copy thereof. See Local Rule 510.2(A); Fed.R.Civ. P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that: Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. See 28 U.S.C. § 636(b)(1). However, pursuant to Fed.R.Civ. P. 72(b), “[a]bsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate’s recommendation, as well as magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate’s report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Provided plaintiffs have objected to all the determinations addressed by the Magistrate, the Court shall make a de novo determination of" }, { "docid": "14810672", "title": "", "text": "ORDER FEUERSTEIN, District Judge. Before the Court are objections by defendants Village of Rockville Centre (“the Village”), the Rockville Centre Police Department (“the RVCPD”) and John P. McKeon (“McKeon”) (collectively, “the Village defendants”) and Brian Burke (“Burke”) to so much of a Report and Recommendation of United States Magistrate Judge E. Thomas Boyle dated August 5, 2009 (“the Report”) that recommends denying in part their respective motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, the Report of Magistrate Judge Boyle is accepted in its entirety. I Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclu sions of the magistrate judge as to which no proper objections are interposed. See, Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See, Fed. R.Civ.P. 72(b); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), aff'd, 125 Fed.Appx. 374 (2d Cir.2005); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). II The Village defendants contend that Magistrate Judge Boyle erred, inter alia, in: (1) overlooking “certain undisputed facts” occurring after February 13, 2003, (Memorandum of Law in Support of the Village Defendants Objections [Vill. Obj.], p. 2); (2) misapplying the summary judgment standard, (Vill. Obj., p. 4); (3) misapplying the standard to establish a prima facie case of" }, { "docid": "14574000", "title": "", "text": "PANNE R, District Judge. Plaintiff David Plumb brings this action for damages against county and state officials whose actions (or inaction) allegedly resulted in plaintiff being wrongly imprisoned for seventy days after the date on which he should have been released from custody. Magistrate Judge Ashmanskas filed two sets of Findings and Recommendations, one on October 7, 1993 and another on November 24, 1993. The Magistrate Judge recommended granting defendants’ motion for qualified immunity (#23) on grounds plaintiff had no liberty interest in credits for time served, and thus defendants Lewis, Toronto, Faatz, and Does 2 through 10 were qualifiedly immune from suit. The Magistrate Judge also recommended granting defendants’ motion (# 35) for summary judgment on the Fourteenth Amendment claims against defendants Prinslow and John Doe 1 because plaintiff was not deprived of any liberty interest. Finally, the Magistrate Judge recommended dismissing plaintiffs negligence claim pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), because after dismissal of the federal claims the court would no longer have pendent jurisdiction over plaintiffs state law claims. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). Plaintiff has timely objected to certain parts of the Magistrate Judge’s report. When either party objects to any portion of the Magistrate Judge’s Findings and Recommendation, the district court must make a de novo review of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The district court must also review de novo the legal principles in the entire report, not just the part objected to. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). I decline to adopt the Magistrate Judge’s Findings and Recommendations. Instead, I dismiss the claims against defendants Abbott, Lewis, Toronto, Faatz, and Does 2 through 10, on grounds that while plaintiff was deprived of a liberty interest, and his unlawful detention" }, { "docid": "14574001", "title": "", "text": "no longer have pendent jurisdiction over plaintiffs state law claims. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). Plaintiff has timely objected to certain parts of the Magistrate Judge’s report. When either party objects to any portion of the Magistrate Judge’s Findings and Recommendation, the district court must make a de novo review of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The district court must also review de novo the legal principles in the entire report, not just the part objected to. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). I decline to adopt the Magistrate Judge’s Findings and Recommendations. Instead, I dismiss the claims against defendants Abbott, Lewis, Toronto, Faatz, and Does 2 through 10, on grounds that while plaintiff was deprived of a liberty interest, and his unlawful detention may also have been contrary to the Eighth Amendment, a reasonable public official in 1990 would not have known that the actions taken by these defendants violated plaintiffs clearly established constitutional rights. I deny the motion for summary judgment as to defendants Prinslow and “John Doe 1.” I retain jurisdiction over the pendent claims. BACKGROUND In January, 1989, plaintiff was a pretrial detainee at the Marion County Jail (“Jail”), in the custody of Marion County Sheriff Prinslow. On January 13,1989, plaintiff was convicted in Marion County Circuit Court of two counts of driving under the influence of intoxicants and two counts of driving with a revoked license. He was fined, and given a suspended prison sentence. As a condition of probation, plaintiff was ordered confined to the Marion County Restitution Center (“Work Center”) (a work-release facility) for a period of six months. The Work Center is also operated by Sheriff Prinslow. On January 20, 1989, plaintiff was transferred from the Jail to the Work Center. On February 24,1989, plaintiff failed to return to the Work" }, { "docid": "4206376", "title": "", "text": "AMENDED OPINION & ORDER DOMINGUEZ, District Judge. Awilda Vega-Morales (“Plaintiff’) filed an.application for disability insurance and for disability insurance benefits on August 8, 2001 pursuant to § 205(g) of the Social Security,Act, 42 U.S.C. § 405(g), alleging an inability to work since July 7, 1999. The application was denied initially and again on reconsideration by the Social Security Administration. On February 2, 2004, a hearing was held at which Plaintiff appeared represented by counsel. On February 23, 2004, the Administrative Law Judge under a de novo standard of review considered Plaintiffs claim and determined that Plaintiff was not disabled pursuant to 42 U.S.C. § 405(g). Plaintiff then appealed to the Appeals Council which rejected the review of the ALJ’s decision in the instant matter, thus rendering the ALJ’s ruling as the final decision of the Commissioner of Social Security. On July 21, 2004 Plaintiff filed the instant action under the Security Act appeals provision, 42 U.S.C. § 405. (Docket No. 1). On May 26, 2005, this Court referred this case to Magistrate Judge Gustavo A. Gelpi for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) Fed.R.Civ.P.72 (b), and Local Rule 72.1(b). (Docket No. 9). Magistrate Gelpi filed a Report and Recommendation (“RR”) on June 10, 2005. (Docket No. 10). In a thorough report the Magistrate recommended that defendant’s benefits under Social Security be denied. Plaintiff timely filed his objection to the RR on June 23, 2005. (Docket No. 11). The Magistrate correctly and clearly pointed out that any objections to the RR must be filed with the Clerk of Court within ten (10) days after being served with a copy thereof. See Fed.R.Civ.P. 72(b) and Local Rule 72.1(b). Pursuant to Fed.R.Civ.P. 72(b), “[ajbsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims" }, { "docid": "4374801", "title": "", "text": "the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, by treating Arnold in a discriminatory manner; 4) a survival action on behalf of Decedent’s estate; and 5) a wrongful death claim against Defendants. This case was assigned to Magistrate Judge Malachy E. Mannion for preliminary review. On June 28, 2004, Magistrate Judge Mannion issued a report recommending that Defendants’ Motion to Dismiss be granted in part and denied in part, to the following extent: as to Count I, the Motion should be denied; as to Counts II and III, the Motion should be granted as to Defendant Police Chief Hill and denied as to Defendant City of York. Defendants filed objections to the Magistrate Judge’s Report and Recommendation on July 12, 2004, and Plaintiffs filed a brief in opposition to Defendants’ objections on July 29, 2004. As Defendants filed a reply brief on August 11, 2004, the issues have been fully briefed and this matter is now ripe for disposition. STANDARD OF REVIEW When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. United States vs. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); 28 U.S.C. § 636(b)(1); Local Rule 72.31. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. Id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge’s proposed findings and recommendations. Id. See also Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.1984). DISCUSSION Defendants objections are in essence restatements of the issues and arguments presented in their brief in support of their Motion to Dismiss submitted to Magistrate Judge Mannion. Defendants argue that the Magistrate Judge erred in deciding that the Plaintiffs stated a" }, { "docid": "10475975", "title": "", "text": "ORDER ROBERT E. JONES, Judge: Magistrate John Jelderks filed Findings and Recommendation on June 24,1993 in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate’s report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). Plaintiff has timely filed objections. I have, therefore, given de novo review of Magistrate Jelderks’ rulings. I find no error with Magistrate Jelderks’ factual findings. I agree that the ■ Secretary’s decision is not supported by substantial evidence and that plaintiff has been disabled since August 24, 1985. However, I also agree with one of plaintiffs two objections to Magistrate Jelderks’ recommendation. Magistrate Jelderks recommends payment to plaintiff beginning on the date of her initial application for benefits, March 17, 1986. Rather, plaintiff is entitled to benefit payments commencing February 25, 1986, at the end of the five-month waiting period required by 42 U.S.C. § 423. See 42 U.S.C. § 423(b) (“An individual who would have been entitled to a disability insurance benefit for any month had he filed application therefor before the end of such month shall be entitled to such benefits for such month if such application is filed before the end of the 12th month immediately succeeding such month.”). Plaintiffs second objection is based on a mistaken belief that Magistrate Jelderks recommended her benefits . run only through March 3,1992, the date of her hearing before the ALJ. Rather, Magistrate Jelderks “ex-pressfed] no opinion as to plaintiffs condition subsequent to March 3, 1992” and recommended that the ease be remanded for a determination of benefits. I agree with Magistrate Jelderks’ recommendation. I ADOPT Magistrate Jelderks’ Findings and Recommendations dated June 24, 1993, as modified by this Order. IT IS SO ORDERED. • FINDINGS AND RECOMMENDATION JELDERKS, United States Magistrate Judge: Plaintiff Carol" }, { "docid": "4206377", "title": "", "text": "Gelpi for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) Fed.R.Civ.P.72 (b), and Local Rule 72.1(b). (Docket No. 9). Magistrate Gelpi filed a Report and Recommendation (“RR”) on June 10, 2005. (Docket No. 10). In a thorough report the Magistrate recommended that defendant’s benefits under Social Security be denied. Plaintiff timely filed his objection to the RR on June 23, 2005. (Docket No. 11). The Magistrate correctly and clearly pointed out that any objections to the RR must be filed with the Clerk of Court within ten (10) days after being served with a copy thereof. See Fed.R.Civ.P. 72(b) and Local Rule 72.1(b). Pursuant to Fed.R.Civ.P. 72(b), “[ajbsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate’s recommendation, as well as magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[objection to a magistrate’s report preserves only those objections that are specified”.); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencias-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). After conducting a de novo review of the record, the Court has found that the RR thoroughly and correctly addressed the issues presented" }, { "docid": "20287906", "title": "", "text": "OPINION AND ORDER DOMINGUEZ, District Judge. Pending before the Court is defendants’ motion to dismiss the complaint for failure to state a claim, pursuant to FED. R.CIY.P. 12(b)(6). After referring this matter to Magistrate Judge Gustavo Gelpi, a Report and Recommendation (R & R) was issued, recommending this Court to grant the motion to dismiss. (Docket No. 55). Plaintiffs, nevertheless, filed a motion challenging the conclusions reached in the R & R. After examining the R & R and objections thereto, the Court hereby GRANTS in PART and DENIES in PART defendants’ motion to dismiss. (Docket No. 34). I. MAGISTRATE REPORT AND RECOMMENDATION The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Fed.R.Civ. P. 72(b); Rule 503, Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Of course, an adversely affected party may contest the Magistrate’s report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Local Rule 510.2(A); Fed.R.Civ. P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that: Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. See 28 U.S.C. § 636(b)(1). However, pursuant to Fed.R.Civ. P. 72(b), “[a]bsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and" }, { "docid": "2906095", "title": "", "text": "ORDER HOGAN, District Judge. Magistrate Judge Dennis J. Hubei filed Findings and Recommendation on March 26, 1997, in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge’s report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461. Defendant has filed timely objections. I have, therefore, given de novo review of Magistrate Judge Hubei’s rulings and find as follows. Plaintiffs filed a citizen suit under the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., alleging past and continuing violations of that law by defendant in connection with its National Pollution Discharge Elimination System (NODES) permit issued by the state of Oregon. Defendant moved to dismiss [# 5] under Federal Rule of Civil Procedure 12(b) for lack of subject matter jurisdiction. Defendant argued plaintiffs’ citizen suit was barred by the CWA because the Oregon Department of Environmental Quality (DEQ) had already initiated and was diligently prosecuting an administrative penalty action in the matter. Judge Hubei issued a Findings and Recommendation which concluded that the state of Oregon had not commenced an administrative penalty action in the matter and that plaintiffs’ suit was therefore not precluded. Defendant asserts that the magistrate • judge erred in concluding the state’s actions did not constitute commencement of an administrative penalty action within the context of the CWA. As supplemented by the additional reasoning provided below, I agree with Judge Hu-bei’s interpretation of the case law as it exists in this circuit and the statutory provisions at issue here. In addition, I find that the record supports the magistrate judge’s conclusion that the Oregon Department of Environmental Quality (DEQ) had not commenced an administrative penalty action against defendants. Judge Hubei found that, although DEQ had commenced administrative proceedings prior to plaintiffs’ notice of violation" }, { "docid": "12355278", "title": "", "text": "ORDER KING, District Judge: The Honorable Janice Stewart, United States Magistrate Judge, filed Findings and Recommendation on July 13, 2007. All parties filed timely objections to the Findings and Recommendation. When either party objects to any portion of a magistrate’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate’s report. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The matter is before this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). This court has, therefore, given de novo review of the rulings of Magistrate Judge Stewart. This court ADOPTS the Findings and Recommendation of Magistrate Judge Stewart dated July 13, 2007 in its entirety. IT IS HEREBY ORDERED that Trout Unlimited’s Motion for Summary Judgment (#45) is GRANTED and State of Oregon’s Motion for Summary Judgment (# 68), Federal Defendants’ Amended Motion for Summary Judgment (# 77), and Alsea Valley Alliance’s Motion for Summary Judgment (# 83) are DENIED. DATED this 5th day of October, 2007. FINDINGS AND RECOMMENDATIONS STEWART, United States Magistrate Judge: INTRODUCTION Plaintiffs, Trout Unlimited, Pacific Rivers Council, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Native Fish Society, Oregon Natural Resources Council, Umpqua Watersheds, and Coast Range Association (collectively, “Trout Unlimited”), seek review of the determination by the National Marine Fisheries Service (“NMFS”) not to list Oregon Coast coho salmon under the Endangered Species Act, 16 USC §§ 1531-44 (“ESA”). NMFS is the federal government agency to which the Secretary of Commerce has delegated responsibility for administrating the provisions of the ESA with regard to threatened and endangered marine species. See 16 USC § 1532(15); 50 CFR § 17.2. NMFS has twice proposed to list the Oregon Coast coho salmon as a threatened species under the ESA, but has twice withdrawn the proposed listing at the urging of the State of Oregon. Initially, the State of Oregon developed the Oregon Coastal Salmon Restoration Initiative (“Oregon Plan”) to encourage voluntary conservation and" }, { "docid": "23155007", "title": "", "text": "court need not itself perform the initial evaluation of the petition; instead, it may refer the matter to a United States Magistrate Judge for a report and recommendation. 28 U.S.C.A. § 636(b)(1)(B) (1992 and West Supp.1997); Fed.R.Civ.P. 72(b). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The plaintiff may contest the magistrate judge’s report and recommendation. The applicable statute provides, in pertinent part, that: [w]ithin ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. 28 U.S.C.A. § 636(b)(1). In the present case, per the court’s order, Magistrate Judge Castellanos reviewed the record as a whole and found that the Secretary’s decision denying disability benefits was based on substantial evidence and, therefore, the court should affirm. (Docket No. 12.) While the court is not required to review any issue raised or resolved in a magistrate judge’s report that is not the subject of a timely objection by the parties in the ease, once an objection is raised, “[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.A. § 636(b)(1)(C). These objections must be filed in a timely manner and in accordance to the rules of the court, which state that objections “shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objection.” Rule 510.2, Local Rules, District of Puerto Rico. Plaintiff filed an opposition to the magistrate judge’s report arguing that there is not substantial evidence in the record to support the Secretary’s denial of disability benefits. (Docket No. 14.) Plaintiff" }, { "docid": "21628855", "title": "", "text": "ORDER ROBERT E. JONES, District Judge. Magistrate Judge Donald C. Ashmans-kas filed Findings and Recommendation (# 11) on December 14, 2001, in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge’s report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). Defendants have timely filed objections. I have, therefore, given de novo review of Magistrate Judge Ashmanskas’s rulings. I find no error. Accordingly, I ADOPT Magistrate Judge Ashmanskas’s Findings and Recommendation (# 11) dated December 13, 2001, in its entirety. Plaintiffs motion (# 5) to remand is GRANTED. IT IS SO ORDERED. FINDINGS AND RECOMMENDATION ASHMANSKAS, United States Magistrate Judge. The plaintiff in this action, designated as MK (“Plaintiff’), is a woman who, as a child, was a parishioner at A.S. and S.A. Catholic churches. A.S. and S.A. were Catholic churches and parishes of defendants the Archdiocese of Portland in Oregon and the Roman Catholic Archbishop of Portland in Oregon, a corporation sole, doing business as the Archdiocese of Portland in Oregon (collectively “Defendants”). Plaintiff alleges that Fathers M.T. and R., were Diocesan priests who, at all relevant times, were employed as priests by Defendants, sexually abused her during the period of time she attended A.S. and S.A. Catholic churches. Plaintiff filed this action for sexual battery against Defendants in the Circuit Court of the State of Oregon for the County of Multnomah. Defendants removed the action to this court asserting that Plaintiffs allegations “create crucial First Amendment issues arising from her allegations of a religious-based ‘breach of trust.’ ” Presently before the court is Plaintiffs motion for remand pursuant to 28 U.S.C.A. § 1447(c). LEGAL STANDARD Section 1447(c) provides, in part: “If at any time before final judgment it appears that the district court lacks subject matter" }, { "docid": "18915123", "title": "", "text": "determination of plaintiff Dejesus’s residual functional capacity, I recommend that the Court cannot conclude that substantial evidence exists to support the ALJ’s finding on this issue. (Report and Recommendation at 15-17.) Magistrate Judge Peck also found that a remand for further proceedings would be inappropriate “since it appears unlikely that the [Commissioner] could present new evidence on this issue, the [Commissioner] has not sought a remand, and there is no showing by the [Commissioner] of ‘good cause’ for the failure to include the appropriate evidence in the original administrative record.” (Report and Recommendation at 17.) The Commissioner has filed an objection to the Magistrate’s Report and Recommendation objecting to the Magistrate’s findings that the Commissioner’s decision that the plaintiff could perform sedentary work was not supported by substantial evidence and that the matter should be remanded only for calculation of benefits. II. When a Magistrate Judge files a report and recommendation in accordance of 28 U.S.C. § 636(b)(1)(B), [a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. 28 U.S.C. § 636(b)(1)(C). A court may reverse a finding of the Commissioner only if that finding is not supported by substantial evidence in the record. 42 U.S.C. § 405(g) (1991) (made applicable to SSI cases by 42 U.S.C. § 1383(e)(8) (1992)). Substantial evidence is “more than a mere scintilla”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). This Court’s independent de novo review of the entire record indicates that Magistrate Judge Peck’s Report is supported by the applicable law, and" }, { "docid": "8791938", "title": "", "text": "involving the unlawful distribution of marijuana. Longo filed extensive Omnibus Motions before Judge Foschio. On February 26, 1999, Judge Foschio filed the Decision and Order and the Report and Recommendation, which denied most of Longo’s requests. Longo now appeals Judge Foschio’s recommendations and decision almost in their entirety. DISCUSSION I. STANDARDS OF REVIEW FOR A MAGISTRATE’S DECISION AND ORDER AND FOR A REPORT AND RECOMMENDATION On February 4, 1999, this Court referred this case to Judge Foschio for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to 28 U.S.C. § 686(b)(1)(B). Pursuant to 28 U.S.C. § 636(b)(1), a magistrate’s decision and order on a nondispositive issue should be reviewed by the district judge according to the clearly erroneous standard. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court judge may designate a magistrate judge to submit proposed findings of fact and recommendations for disposition on a defendant’s motion in a criminal case. However, the parties have an opportunity to object to the magistrate judge’s proposed findings. Upon the filing of timely objections, the district judge must conduct a de novo review of the magistrate judge’s report and recommendation “upon the record, or after additional evidence,” but only as to those portions of the report and recommendation to which the party objects. Fed.R.Civ.P. 72(b). See also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). The district court is not required to conduct a de novo hearing on the matter, but the court must arrive at its own independent conclusion about those portions of the magistrate’s report and recommendation to which the objection is made. See East River Sav. Bank v. Secretary of Housing & Urban Development, 702 F.Supp. 448, 452 (S.D.N.Y.1988). Following this determination: “a judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” 28 U.S.C." } ]

[ { "docid": "20800641", "title": "", "text": "of the district court on the merits in the underlying action. Even if we were to conclude that the district court erred in denying appellants’ motion to intervene, none of their claims could be adjudicated now that the summons enforcement proceeding has been dismissed. Since there is no proceeding in which appellants can intervene, this appeal is moot. Attorneys Fees Appellants also argue that the question of attorney’s fees prevents the intervention issue from becoming moot, since the resolution of the fee issue depends on a determination of whether the district court erred in denying them leave to intervene. They claim that in order to decide whether they are “prevailing parties” entitled to fees under 42 U.S.C. § 1988, this Court must decide the underlying issue. We do not agree. Although a claim for attorney’s fees does not preserve a case which otherwise has become moot on appeal, see Washington Market Co. v. District of Columbia, 137 U.S. 62, 11 S.Ct. 4, 34 L.Ed. 572 (1890), prior decisions of this Court have estab lished that the question of attorney’s fees is ancillary to the underlying action and survives independently under the Court’s equitable jurisdiction. Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1140 (9th Cir. 1979); Schmidt v. Zazzara, 544 F.2d 412, 414 (9th Cir. 1976). Therefore, we have jurisdiction to decide the only question before us: whether the appellants are “prevailing parties” under the relevant statute, 42 U.S.C. § 1988, which provides in part: ... in any civil action or proceeding by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. Although the ordinary procedure to be followed is to remand the case to the district court for a determination of the attorney’s fees issue, see Doe v. Marshall, 622 F.2d 118, 119 (5th Cir. 1980), we believe that remand is not necessary in this case, since" } ]

[ { "docid": "13997857", "title": "", "text": "is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (quoting Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)) (emphasis in original). Here, the magistrate judge concluded, “the desired modification of behavior underlying the plaintiffs complaint, the removal of the defendant’s lien on the subject property, has already been accomplished. Any further judicial pronouncements would be without ‘real value.’ ” In saying the lat ter, the magistrate judge reiterated what is clear: that no matter what damages plaintiff may feel she has suffered as a result of the lien, “no specific relief through a decree of a conclusive character,” as distinguished from a mere advisory opinion, is presently possible in this litigation. Lewis, 494 U.S. at 477, 110 S.Ct. 1249. Second, the Supreme Court has concluded that the desire for attorney’s fees is insufficient to maintain Article III jurisdiction: At the time Continental’s challenge to denial of its application for an insured ISB was mooted by the amendments to the BHCA, this litigation had been in progress for almost seven years. An order vacating the judgment on grounds of mootness would deprive Continental of its claim for attorney’s fees under 42 U.S.C. § 1988 (assuming, arguendo, it would have such a claim), because such fees are available only to a party that “prevails” by winning the relief it seeks. This interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim. Where on the face of the record it appears that the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements ... obtained solely in order to obtain reimbursement of sunk costs. Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (internal citations omitted). See also Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Human Resources, 532 U.S. 598, 605, 121" }, { "docid": "11660492", "title": "", "text": "That distinction is of little merit because the Court has already stated that an “interest in attorney’s fees is ... insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). To have a ease or controversy, “[t]he litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” Steel Co., 523 U.S. at 107, 118 S.Ct. 1003. Where “the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements ... obtained, solely in order to obtain reimbursement of sunk costs.\" Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (emphasis added). Although there is no Supreme Court precedent dealing with this issue in the context of a Clayton Act violation, the plaintiffs bear the burden of demonstrating that the litany of Supreme Court cases on similar statutory costs and attorneys’ fees are inapplicable. They fail to do so. Their strongest argument for continuing with this litigation is a misreading of a prior case in this circuit, Sciambra, which sat in a markedly different procedural posture from the case now before us. Sciambra v. Graham News, 892 F.2d 411 (5th Cir.1990). Sciambra dealt with statutory costs and attorneys’ fees under the Clayton Act, but the court had already found antitrust liability against the defendants through a default judgment. Since liability was already established, statutory attorneys’ fees were awarded. Despite arguments to the contrary by the plaintiffs and the majority, Sciambra is not controlling of the outcome of this case. What the attorneys here request is completely different from Sciambra because liability, and the right to be awarded attorneys’ fees, has yet to be ascertained. To be clear, the plaintiffs’ attorneys are not asking for a hearing to determine the amount of their fees, a perfectly reasonable request." }, { "docid": "14954197", "title": "", "text": "the case. However, on July 28, 2003, the Board reversed the presiding judge’s Initial Decision and, citing Tunik, held that the Board had no jurisdiction over the case. Schloss v. Social Sec. Admin., 93 M.S.P.R. 578 (2003). Schloss timely petitioned for review with this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. DISCUSSION A. Standard of Review This court must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000). Whether the Board has jurisdiction to hear an appeal is a question of law reviewed de novo. Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed.Cir.1999). The Board’s jurisdiction is limited to those actions specifically granted by law, rule, or regulation. 5 U.S.C. § 7701(a) (2000); Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1374 (Fed.Cir.2003). B. Analysis 1. Tunik’s Appeal As a preliminary matter,- the Agency, as Intervenor, argues that Tunik’s appeal is moot because he voluntarily retired. Tunik responds that his claim for attorney’s fees remains alive and that he may choose to claim on remand that his retirement was involuntary. Moreover, he argues that there remains a risk that the Agency would take similar actions to impair his decisional independence in the future. First, we are unable to discern the claim for attorney’s fees to which Tu-nik refers. He has presented no claim for attorney’s fees to this court, nor did he present a claim for attorney’s fees to the Board. Moreover, even if he had presented a claim for attorney’s fees, “[an] interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Second, although Tunik is free to assert a claim that his retirement was in fact involuntary, he has not done so" }, { "docid": "19409180", "title": "", "text": "McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (C.A.2 2005). Contrary to the dissent's assertion, see post, at 1536 (opinion of Kagan, J.), nothing in the nature of FLSA actions precludes satisfaction-and thus the mooting-of the individual's claim before the collective-action component of the suit has run its course. Because Roper is distinguishable on the facts, we need not consider its continuing validity in light of our subsequent decision in Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). See id., at 480, 110 S.Ct. 1249 (\"[An] interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim\"). The majority also justifies this approach on the ground that Symczyk did not file a cross-petition for certiorari objecting to the Third Circuit's decision. But that is because Symczyk got the judgment she wanted in the Third Circuit. As the majority agrees, a cross-petition is necessary only when a respondent seeks to \"alter\" the judgment below. Ante, at 1528; see E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 490 (9th ed. 2007) (\"[A] party satisfied with the action of a lower court should not have to appeal from it in order to defend a judgment in his or her favor on any ground\"). Here, the Third Circuit reversed the District Court's dismissal of Symczyk's FLSA suit, ruling that her collective action could go forward even though her individual claim was moot; accordingly, accepting Symczyk's new argument would lead not to modifying the appellate judgment, but to affirming it on a different ground. In any event, we have never held that the cross-petition requirement is jurisdictional. See id., at 493-494. We can choose to excuse the absence of a cross-petition for the same reasons, discussed next, that we can consider an issue not raised below. See Vance v. Terrazas, 444 U.S. 252, 258-259, n. 5, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980). For similarly questionable deployment of this Court's adjudicatory authority, see Comcast Corp. v." }, { "docid": "14954198", "title": "", "text": "matter,- the Agency, as Intervenor, argues that Tunik’s appeal is moot because he voluntarily retired. Tunik responds that his claim for attorney’s fees remains alive and that he may choose to claim on remand that his retirement was involuntary. Moreover, he argues that there remains a risk that the Agency would take similar actions to impair his decisional independence in the future. First, we are unable to discern the claim for attorney’s fees to which Tu-nik refers. He has presented no claim for attorney’s fees to this court, nor did he present a claim for attorney’s fees to the Board. Moreover, even if he had presented a claim for attorney’s fees, “[an] interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Second, although Tunik is free to assert a claim that his retirement was in fact involuntary, he has not done so before this court, nor has he done so before the Board. Thus, any claim for involuntary retirement is not a part of this case and is not before us. Tunik’s complaint only seeks prospective relief to prevent his supervisors from interfering with his decisional independence. Given that Tu-nik has retired, it is difficult to see how any of Tunik’s supervisors could interfere with his decisional independence in the future. Thus, Tunik’s appeal is moot and must be dismissed. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (“[jurisdiction, properly acquired, may abate if the case becomes moot because (1) it can be said with assurance that ‘there is no reasonable expectation ... ’ that the alleged' violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” (citation omitted)); United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (“A case might become moot if subsequent events made it absolutely" }, { "docid": "13997858", "title": "", "text": "insured ISB was mooted by the amendments to the BHCA, this litigation had been in progress for almost seven years. An order vacating the judgment on grounds of mootness would deprive Continental of its claim for attorney’s fees under 42 U.S.C. § 1988 (assuming, arguendo, it would have such a claim), because such fees are available only to a party that “prevails” by winning the relief it seeks. This interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim. Where on the face of the record it appears that the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements ... obtained solely in order to obtain reimbursement of sunk costs. Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (internal citations omitted). See also Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Human Resources, 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (holding that the term “prevail” denotes “a judicially sanctioned change in the legal relationship of the parties”). We have held that “Buckhannon is presumed to apply generally to all fee-shifting statutes that use the ‘prevailing party’ terminology.” The situation here, as the magistrate judge pointed out, is parallel to Lewis in that the concrete interest in the controversy has terminated with the removal of the tax lien from the property. To be sure, plaintiff may feel a dispute still lingers over the United States’ legal justification for filing the lien in the first place. Section 2410, however, makes no provision for adjudicating such a question now that the lien no longer exists, leaving the court without jurisdiction to do so. And this Circuit has recently held that a “litigant’s interest in a possible award of attorney’s fees is not enough to create a justiciable case or controversy if none exists on the merits of the underlying claim.” Goodwin v. C.N.J., Inc., 436 F.3d 44, 51 (1st Cir.2006). Johansen cites" }, { "docid": "19537181", "title": "", "text": "Article III standing. See Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (An \"interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.\"); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (\"Obviously, however, a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.\"). The majority suggests that this case is analogous to U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), where the Court declined to vacate a lower court decision that became moot on certiorari when the parties voluntarily settled the case. Bancorp is inapposite-it involves the equitable powers of the courts to vacate judgments in moot cases, not the Article III question whether a case is moot in the first place. The premise of Bancorp is that it is up to the federal courts-and not the parties-to decide what to do once a case becomes moot. The majority's position, in contrast, would leave it to the plaintiff to decide whether a case is moot. To further support its Article III-by-contract theory of the case, the Court looks to Federal Rule of Civil Procedure 68, which states that an unaccepted offer of judgment \"is considered withdrawn.\" Rule 68(b). But Campbell made Gomez both a Rule 68 offer and a freestanding settlement offer. By its terms, Rule 68 does not apply to the latter. The majority's only argument with respect to the freestanding settlement offer is that under the rules of contract law, an unaccepted offer is a \"legal ity.\" Ante, at 670. As explained, however, under the principles of Article III, an unaccepted offer of complete relief moots a case. Justice THOMAS, concurring in the judgment, would decide the case based on whether there was a" }, { "docid": "11660491", "title": "", "text": "must continue throughout the litigation. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524-25 (5th Cir.2008). Here, plaintiffs cannot demonstrate any personal stake in the continuance of the litigation following the Stewart Settlement because they have none. Their claimed damages have been met multiple times over by the Stewart Settlement. The case, as it relates to the plaintiffs, is moot because their injury has been remedied. The Supreme Court has previously stated that “a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107-08, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The plaintiffs’ attorneys’ argument for continuing this case for fees is nearly identical to that which was rejected in Steel Co., where the Court ruled that attempting to recoup statutory costs was not enough to confer standing. In that case, the money recovered would have gone to the United States Treasury, whereas here, any further money recovered would go to the attorneys. That distinction is of little merit because the Court has already stated that an “interest in attorney’s fees is ... insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). To have a ease or controversy, “[t]he litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” Steel Co., 523 U.S. at 107, 118 S.Ct. 1003. Where “the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements ... obtained, solely in order to obtain reimbursement of sunk costs.\" Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (emphasis added). Although there is no Supreme Court precedent dealing with this issue in the context of a Clayton Act violation, the" }, { "docid": "19916158", "title": "", "text": "the district court’s judgment and remand it with instructions to dismiss the action. III. We turn to Gomez-Colon’s appeal and plaintiffs’ cross-appeal of the district court’s award of attorney’s fees. A. Gomez-Colon’s Appeal From the Attorney’s Fees Award We review a district court’s award of attorney’s fees under § 1988 for an abuse of discretion, in deference to the district court’s superior ability to calibrate such awards to the nuances of the case. See Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.2001). It is true that a party’s interest in recouping attorney’s fees does not create a stake in the outcome sufficient to resuscitate an otherwise moot controversy. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). However, even when federal courts lack jurisdiction to decide the merits of an appeal, “the expiration of the underlying cause of action does not moot a controversy over attorney’s fees already incurred.” In re Savage Indus., Inc., 43 F.3d 714, 719 n. 6 (1st Cir.1994) (quoting Anderson v. U.S. Dep’t of Health and Human Servs., 3 F.3d 1383, 1385 (10th Cir.1993) (internal quotation marks omitted)); see also United States v. Ford, 650 F.2d 1141, 1143-44 (9th Cir.1981) (“[T]he question of attorney’s fees is ancillary to the underlying action and survives independently under the Court’s equitable jurisdiction.”). Under § 1988, when a plaintiff successfully pursues a civil rights action under § 1988, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). Generally speaking, a “prevailing party” is “one who has been awarded some relief by the court,” meaning a “judicially sanctioned change in the legal relationship of the parties.” Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); see also Aronov v. Napolitano, 562 F.3d 84, 89 (1st Cir.2009) (en banc). A plaintiff who receives a favorable judgment on the merits of a claim is the classic example of" }, { "docid": "19537180", "title": "", "text": "strongly encouraged a plaintiff to accept a tender by penalizing plaintiffs who improperly rejected them. A plaintiff would not be able to recover any damages that accrued after the tender, nor could he receive the costs of the suit if the jury returned a verdict for either the amount offered or less. See Hunt §§ 363-364, at 403-404. This rule remains today. See Fed. Rule Civ. Proc. 68(d) (taxing costs to plaintiff who fails to recover more than the offer of judgment). The Court does not reach the question whether Gomez's claim for class relief prevents this case from becoming moot. The majority nevertheless suggests that Campbell \"sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept.\" Ante, at 672. But under this Court's precedents Gomez does not have standing to seek relief based solely on the alleged injuries of others, and Gomez's interest in sharing attorney's fees among class members or in obtaining a class incentive award does not create Article III standing. See Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (An \"interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.\"); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (\"Obviously, however, a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.\"). The majority suggests that this case is analogous to U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), where the Court declined to vacate a lower court decision that became moot on certiorari when the parties voluntarily settled the case. Bancorp is inapposite-it involves the equitable powers of the courts to vacate judgments in moot cases, not the Article" }, { "docid": "82055", "title": "", "text": "a live controversy.”); see also Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (\"This interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” (citation omitted)); Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (holding that a party does not have an interest in an underlying claim just because prevailing would entitle the party to attorneys' fees); Davidson, 236 F.3d at 1183 (stating that Dah-lem does not stand for the proposition that \"an otherwise moot issue is revived whenever a prevailing party requests or might request fees”). But that is not the case here. The cross-appeal solely seeks our ruling on the motion for attorneys’ fees, not on any underlying action that might affect the ability to collect attorneys' fees. Our cases have confirmed that a claim for attorneys' fees remains viable even after the underlying action becomes moot. See Fleming, 785 F.3d at 448; Davidson, 236 F.3d at 1183. In sum, these opinions hold that a controversy over attorneys' fees remains viable on its own, but does not give life to any other mooted dispute. . The fact that relief here is declaratory relief, rather than damages, does not prevent the finding of a substantial benefit. See, e.g., Mills, 396 U.S. at 392, 90 S.Ct. 616 (concluding that a common-benefit exception award was not barred by \"[t]he fact that this suit has not yet produced, and may never produce, a monetary recovery”). . This question appears to have been presented to a panel of our court but we had no occasion to resolve it. Specifically, in Kornfeld v. Kornfeld, 341 Fed.Appx. 394 (10th Cir.2009) (unpublished), the district court had based its fee award on a finding of bad faith, and we remanded the fee award for a more specific finding of whether the bad faith at issue could meet our narrow test. See Kornfeld, 341 Fed.Appx. at 400. The district court had also purportedly relied on § 2202 to justify the fee award, but we declined to" }, { "docid": "19916157", "title": "", "text": "Nat’l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346, 351-53 (D.C.Cir.1997). Diffenderfer and McCarroll essentially ask us to ignore the fact that an intervening event mooted the case and deprived this court of jurisdiction over the merits of the appeal. They argue that we should instead wade into a separate, hotly contested possible issue in the underlying case which has been rendered moot-the issue of whether the case would have been moot anyway. Specifically, they claim that the case was rendered moot by the passage of the November 2008 Puerto Rican elections and that Gomez-Colon’s failure to seek a stay of the district court’s injunction in September 2008 was a voluntary decision not to preserve the case for appeal. We can find no basis for doing so. See, e.g., Bd. of Educ. v. Nathan R., 199 F.3d 377, 381 (7th Cir.2000) (declining to address possibility of earlier mootness when subsequent, intervening event made it impossible to grant any judicial remedy that would affect the parties’ rights and vacating judgment below). We accordingly vacate the district court’s judgment and remand it with instructions to dismiss the action. III. We turn to Gomez-Colon’s appeal and plaintiffs’ cross-appeal of the district court’s award of attorney’s fees. A. Gomez-Colon’s Appeal From the Attorney’s Fees Award We review a district court’s award of attorney’s fees under § 1988 for an abuse of discretion, in deference to the district court’s superior ability to calibrate such awards to the nuances of the case. See Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.2001). It is true that a party’s interest in recouping attorney’s fees does not create a stake in the outcome sufficient to resuscitate an otherwise moot controversy. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). However, even when federal courts lack jurisdiction to decide the merits of an appeal, “the expiration of the underlying cause of action does not moot a controversy over attorney’s fees already incurred.” In re Savage Indus., Inc., 43 F.3d 714, 719 n. 6 (1st Cir.1994) (quoting" }, { "docid": "18106074", "title": "", "text": "Second, the agreement purports to reserve Potter’s right to appeal the district court order denying class certification. Third, Nor-west agreed not to contest this appeal as moot. Fourth, the parties agreed they did not waive their rights to recover attorney fees. After the settlement hearing, the district court dismissed Potter’s claims with prejudice. Potter appeals the district court’s order denying class certification. At oral argu ment, we inquired whether the parties’ settlement agreement caused the appeal to become moot because a case or controversy no longer existed under Article III of the Constitution. U.S. Const. Art. Ill, § 2, cl. 1. As counsel were not prepared at oral argument to discuss fully the jurisdictional issue, we requested supplemental briefing. II. DISCUSSION A. Case or Controversy Requirements Whether Potter, having settled the individual claims, presents a continuing Article III case or controversy to challenge a denial of class certification presents an issue of first impression for this court. The jurisdictional issue illustrates the tension between the restrictions imposed by Article III on the federal judiciary and the judicial efficiency sought by the class-action mechanism. Article III of the Constitution only allows federal courts to adjudicate actual, ongoing cases or controversies. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272(1975). The case or controversy requirement ensures that “self-interested parties vigorously advocating opposing positions” present issues “in a concrete factual setting.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). When an action no longer satisfies the case or controversy requirement, the action is moot and a federal court must dismiss the action. See Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir.1999). Article III requires parties to have a continuing “personal stake in the outcome” of the lawsuit. Baker v.Carr, 369 U.S. 186, 204," }, { "docid": "23613690", "title": "", "text": "prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citation omitted); see also Diamond v. Charles, 476 U.S. 54, 70-71,106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1183 (10th Cir.2000) (citations omitted). If a case becomes moot during the course of litigation, “the expiration of the underlying cause of action does not moot a controversy over attorney’s fees already incurred,” but at the same time, a live claim for attorneys fees does not prevent the case from becoming moot. Dahlem v. Bd. of Educ. of Denver Pub. Schs., 901 F.2d 1508, 1511 (10th Cir.1990). The as-applied claim in this casé became moot when the City acted on UARC’s permit application, and the facial claim became moot no later than when the City amended the Ordinance. Both events occurred before the district court rendered any decisions in the case. It surely follows that Plaintiffs would not be entitled to any fees for legal work performed after the case became moot (even assuming, contrary to fact, that they were prevailing parties ). As the Court stated in Rhodes, 488 U.S. at 4,109 S.Ct. 202: “The case was moot before judgment issued, and the judgment therefore afforded the plaintiffs no relief whatsoever. In the absence of relief, a party ... is not entitled to an award of attorney’s fees.” As to legal work performed before the case became moot, it would have been arguable, prior to Buckhannon, that this work was eligible for attorneys fees on the theory that it was the “catalyst” for Salt Lake City’s decision to amend the Ordinance. In Buckhannon, however, the Supreme Court held that plaintiffs are not entitled to attorneys fees under § 1988, even if their legal efforts induced the defendant" }, { "docid": "11660450", "title": "", "text": "fees and costs. In contrast, Appellants are eligible for mandatory fees and costs under the Clayton Act if their antitrust claims are proven valid. Again, under § 4 of the Clayton Act, attorneys’ fees and costs are not left to the discretion of the judge. They are part of a tripartite award Congress has mandated for plaintiffs to encourage private enforcement of antitrust actions. Attorneys’ fees and costs are awarded even if an otherwise successful plaintiff is awarded no compensatory damages by the jury. Ducote Jax Holdings LLC v. Bradley, 335 Fed.Appx. 392, 402 (5th Cir.2009) (unpublished) (citing Sciambra II, 892 F.2d at 414-16). The award is mandatory and not limited to merely litigation costs. In Lewis, the plaintiff secured an injunction and declaration that a Florida banking law violated the Commerce Clause and then brought a separate statutory claim for attorneys’ fees under 42 U.S.C. § 1988, contending that it had prevailed on its 42 U.S.C. § 1983 claim because the state’s prior enforcement of the law deprived the plaintiff of its constitutional rights. 494 U.S. at 474-76, 110 S.Ct. 1249. Section 1988 allows courts, again, in their discretion, to grant parties who prevail on certain federal claims to obtain attorneys’ fees as part of their costs. The Supreme Court held that the plaintiff was no longer a “prevailing party” and, thus, no longer entitled to attorneys’ fees because the underlying § 1983 claim became moot on appeal. Id. at 476, 483, 110 S.Ct. 1249. Here, the Stewart settlement only resulted in the dismissal with prejudice of-Appellants’ antitrust claims against Stewrart, not as against Appellees. Second, the Appellants’ entitlement to attorneys’ fees is not discretionary if they prevail; it is a statutory mandate. And third, unlike the plaintiff in Lewis, Appellants in this case have not yet had assessed and received the full amount that could be due to them under § 4 of the Clayton Act. See also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12-13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (“[A] court does have power to effectuate a partial remedy ...." }, { "docid": "82054", "title": "", "text": "on their request for attorneys' fees, they also could not win their other sought-after relief. See, e.g., Aplt.App. at 2203 (Mem. & Order) (\"The parties . agree that an award of nontaxable expenses depends on whether the court awards attorneys’ fees.”). And on appeal, the parties’ arguments reflect the same understanding. For reasons explicated infra, the parties’ perception of the interrelationship between attorneys’ fees and the other monetary relief that plaintiffs seek has a solid grounding in the law. Given this interrelationship, we have no occasion here to analyze discretely plaintiffs' entitlement to the three components of relief sought in their motion; instead, our analytical focus is on the propriety of the district court’s ruling regarding attorneys' fees. . We have also stated that a plaintiff may not use a dispute over attorneys' fees to revive an otherwise moot controversy on the merits. See Fleming v. Gutierrez, 785 F.3d 442, 448 (10th Cir.2015) (\"The possibility that the preliminary injunction will form the basis for a grant of attorney’s fees does not transform this appeal into a live controversy.”); see also Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (\"This interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” (citation omitted)); Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (holding that a party does not have an interest in an underlying claim just because prevailing would entitle the party to attorneys' fees); Davidson, 236 F.3d at 1183 (stating that Dah-lem does not stand for the proposition that \"an otherwise moot issue is revived whenever a prevailing party requests or might request fees”). But that is not the case here. The cross-appeal solely seeks our ruling on the motion for attorneys’ fees, not on any underlying action that might affect the ability to collect attorneys' fees. Our cases have confirmed that a claim for attorneys' fees remains viable even after the underlying action becomes moot. See Fleming, 785 F.3d at 448; Davidson, 236 F.3d at 1183. In sum, these" }, { "docid": "23206340", "title": "", "text": "rights. For it involves only the subsidiary, threshold issue of whether a California court has the power to adjudicate the parties’s dispute. Concurring op. at 1133. Judge Tashima relies on a newly formulated distinction between “primary rights” and some other kind of rights. But no such distinction exists in mootness law. As long as there is a bona fide legal dispute, with tangible consequences for the parties, there is a live controversy. As our own case law makes clear, we have jurisdiction to decide an appeal where the parties have settled the merits of their underlying dispute, but where they continue to disagree on costs or attorneys’ fees. For example, in Zucker v. Occidental Petroleum Corp., 192 F.3d 1323 (9th Cir.1999), plaintiffs brought a securities class action in federal district court. The merits of the suit were settled, but attorneys’ fees remained in dispute. The parties did not dispute the amount of fees, but whether fees were owed at all. In Judge Tashima’s terminology, there were no longer any “primary rights” at issue because the parties had settled their underlying dispute. We nevertheless had no trouble understanding that the parties’ dispute over attorneys’ fees was not moot, and that we had jurisdiction to decide it. In affirming the district court’s award of attorneys’ fees, we wrote: “No Article III case or controversy is needed with regard to attorneys’ fees as such, because they are but an ancillary matter over which the district court retains equitable jurisdiction even when the underlying case is moot. Its jurisdiction outlasts the ‘case or controversy.’ ” Id. at 1329. See also Association of California Water Agencies, 386 F.3d 879 (deciding attorneys’ fees on appeal although merits of the underlying suit had been rendered moot by action of the defendant). Judge Tashima contends that because we referred in Zucker to attorneys’ fees as an “ancillary matter,” we were exercising “ancillary jurisdiction” in that case. Concurring op. at 1133, n. 1. From that, he concludes that we have no jurisdiction in this case. But “ancillary matter” and “ancillary jurisdiction” are not synonymous terms, and we did not" }, { "docid": "19999688", "title": "", "text": "certain to be “a recurring one.” Jenkins, 935 F.2d at 308. We can reasonably expect that the District will again “be aggrieved by similar application of the IDEA.” Id. In other words, this case is “capable of repetition.” The exception therefore applies. See DeVries by De-Blaay v. Spillane, 853 F.2d 264, 268 (4th Cir.1988) (“EHA cases are classic cases for application of the ‘capable of repetition, yet evading review’ rule.”). Doe counters that the case is moot because the District is pursuing it only to avoid paying attorney fees. See Appellee’s Br. 23 n. 8 (acknowledging District’s offer to settle if Doe would waive right to attorney fees). He is right that “[a]n ‘interest in attorneys’ fees is ... insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.’ ” Spirit of the Sage Council v. Norton, 411 F.3d 225, 229 (D.C.Cir.2005) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)) (ellipsis in Norton). As explained above, however, our jurisdiction is based on our conclusion that the action is “capable of repetition, yet evading review,” not on a controversy regarding attorney fees. B. Timeliness When the District brought this action in the district court the limitations period for filing a complaint challenging an IDEA hearing officer’s decision was thirty days under our decision in Spiegler v. District of Columbia, 866 F.2d 461, 466 (D.C.Cir.1989). The District filed its complaint on August 26, 2004, eighty-three days after the HOD issued. Relying primarily on R.S. v. District of Columbia, 292 F.Supp.2d 23 (D.D.C.2008), however, the District argues that its complaint was timely because its request for reconsideration by the IDEA hearing officer tolled the limitations period. Doe argues that R.S. “was wrongly decided” and that, contrary to the holding in that case, the District’s request for reconsideration was itself untimely. Reply. Br. 11. We do not resolve this dispute because it is not properly before us. Doe did not raise his timeliness argument in the district court until his post-judgment “Motion to Stay Proceedings and" }, { "docid": "23613689", "title": "", "text": "rights plaintiffs to bring lawsuits challenging unconstitutional state action. Indeed, the most likely reason why a plaintiff would continue to pursue litigation, despite the cost, when a favorable judgment would have no practical effect, is the possibility of obtaining fees. In Farrar, the Supreme Court held that a § 1983 plaintiff who seeks compensatory damages but receives only nominal damages is a “prevailing party” for purposes of attorneys fees under 42 U.S.C. § 1988— though it also held that in such a case “the only reasonable fee is usually no fee at all.” 506 U.S. at 115, 113 S.Ct. 566. Presumably, a plaintiff who seeks only nominal damages, and prevails on the claim, would also be a “prevailing party.” The entitlement of such a party to attorneys fees would be determined according to the factors set forth by Justice O’Connor in her concurrence in Farrar, 506 U.S. at 121-22, 113 S.Ct. 566, and adopted by this Circuit in the context of declaratory relief in Phelps v. Hamilton, 120 F.3d 1126, 1131—32 (10th Cir.1997). But the prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citation omitted); see also Diamond v. Charles, 476 U.S. 54, 70-71,106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1183 (10th Cir.2000) (citations omitted). If a case becomes moot during the course of litigation, “the expiration of the underlying cause of action does not moot a controversy over attorney’s fees already incurred,” but at the same time, a live claim for attorneys fees does not prevent the case from becoming moot. Dahlem v. Bd. of Educ. of Denver Pub. Schs., 901 F.2d 1508, 1511 (10th Cir.1990). The as-applied claim in this casé became moot when the City acted on UARC’s permit application," }, { "docid": "5534984", "title": "", "text": "is unenforceable. I therefore respectfully dissent. . As discussed, the actual holding of Super Sack was that a covenant not to sue for past or present acts of infringement is sufficient to divest the court of subject-matter jurisdiction. 57 F.3d at 1059. . Claims for attorney’s fees are collateral to the underlying lawsuit for which the fees are sought. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200-01, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that an attorney's fee award is separate from a trial court’s decision on the merits for purposes of the time limits set for appeals under Fed. R.App. P. 4); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 170, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (indicating that motions for attorney’s fees are “independent proceeding^] supplemental to the original proceeding and not a request for a modification of the original decree”). The issue of attorney’s fees is consequently distinct from, and has no effect on, the question of whether a case has become moot. See Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir. 1999) (\"No Article III case or controversy is needed with regard to attorney's fees ... because they are but an ancillary matter over which the district court retains equitable jurisdiction even when the underlying case is moot.” (emphasis added)). . This is not to say that Fort James’s overall litigation conduct could not be used by Solo Cup in trying to establish the existence of an \"exceptional case” in a timely motion for attorney’s fees under 35 U.S.C. § 285. See Zucker, 192 F.3d at 1329 (holding that a trial court still has jurisdiction to entertain motions for attorney’s fees after the underlying action has become moot); see also Gator.Com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1133 n. 1 (9th Cir.2005) (en banc) (Tashima,' J., concurring)." } ]

[ { "docid": "22298384", "title": "", "text": "claim to the BIA. The BIA affirmed the IJ’s denial of asylum, but on different grounds. In re Sylvestre Passi, No. [ A XX XXX XXX ] (B.I.A. Apr. 19, 2007). The BIA assumed that his asylum application was timely filed and that he had testified credibly about his past persecution, but explained in a short per curiam decision: [W]e concur with the Immigration Judge’s ultimate decision that conditions in the Republic of Congo have changed to the extent that there is no evidence in the record that [Passi] would face persecution there. In that regard, we find no indication in the most recent objective evidence of record that [Passi,] who was beaten into unconsciousness during a 1997 raid by Cobra militia, presently has an objectively reasonable fear of persecution in the Republic of Congo based on any past persecution. Further, we find no evidence that [Passi] has an independent well-founded fear of future persecution by Cobra militiamen on account of his Lari ethnicity, his imputed political support of former President Pascal Lissouba, or any other protected ground under [8 U.S.C. § 1158], if he is removed to the Republic of Congo. Id. (citations omitted). Passi timely petitioned this Court for review, again only challenging the denial of his asylum claim. II When the BIA affirms an IJ’s decision on different grounds, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). As we have explained on several occasions, however, when the BIA affirms the IJ’s decision in some respects, but not others, we may also review the IJ’s decision, although our review is confined to those reasons for denying relief that were adopted by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). In this case, the BIA assumed that Passi’s asylum application was timely filed and that he had testified credibly, so we may not rest on the IJ’s adverse credibility finding or her ruling pretermitting Passi’s asylum claim. See" } ]

[ { "docid": "22118511", "title": "", "text": "the mandate of this Court was placed on hold on May 12, 2006. On June 19, 2006 — before the end of the 49 day period but while the mandate was still on hold — the BIA issued a non-precedential opinion, affirming the IJ’s decision on the grounds that petitioners had not shown that “affluent Guatemalans” are members of a particular social group and that they did not demonstrate they were persecuted or faced a well-founded fear of future persecution on account of a protected ground. See In re Espana-Espinoza & Ucelo-Gomez, [ A XX XXX XXX ], [ A XX XXX XXX ] (B.I.A. June 19, 2006). In an amended opinion issued nunc pro tunc and filed on September 28, 2006, this Court clarified that its original remand was pursuant to United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994), and that the panel thus retained jurisdiction to rule upon the petition on appeal following disposition of the remand. On October 2, 2006 the hold was lifted and the following day the mandate issued. The BIA later issued an identical prece-dential opinion, see In re A-M-E & J-G-U- 24 I. & N. Dec. 69 (B.I.A. Jan. 31, 2007), publishing as precedent In re Espana-Espinoza & Ucelo-Gomez, [ A XX XXX XXX ], [ A XX XXX XXX ] (B.I.A. June 19, 2006). The BIA has fulfilled the terms of our remand by rendering a timely opinion as to whether affluent Guatemalans constitute a particular social group for asylum purposes. We retained jurisdiction to decide the issues set forth by the petition, and upon further consideration in light of the BIA’s opinion, we now deny the petition. BACKGROUND The facts underlying Mr. Ueelo-Gomez’s and Ms. Espana-Espinoza’s petitions for review are set forth in detail in our previous opinion, see Ucelo-Gomez, 464 F.3d at 165-66, and the reader’s familiarity with it is assumed. DISCUSSION I “When the BIA issues an opinion, ‘the opinion becomes the basis for judicial review of the decision of which the alien is complaining.’ ” Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quoting Niam" }, { "docid": "22405335", "title": "", "text": "PER CURIAM: Petitioner, Merlinda Santoso (“petitioner” or “Santoso”), a native and citizen of Indonesia, seeks review of a September 28, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the January 30, 2006 decision of an immigration judge (“IJ”) denying Santoso’s application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. In her petition to this Court, Santoso argues that the BIA and the IJ failed adequately to address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia. BACKGROUND Petitioner arrived in the United States on or about August 2,1999, with authorization to remain for a temporary period not to exceed six moths. On May 23, 2005, nearly six years after her arrival, petitioner filed an application for asylum, withholding of removal, and relief under the CAT. Shortly thereafter, the Department of Homeland Security charged her with removal pursuant to 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted and ordered her to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008)." }, { "docid": "22921776", "title": "", "text": "Finally, the BIA denied Aliyev withholding of removal or relief under the CAT. Aliyev both petitioned this Court for review and moved the BIA to reconsider its decision. On June 13, 2007, the BIA denied Ali-yev’s motion to reconsider, again concluding that the Stipulation did not contest the BIA’s prior findings concerning the nongovernmental actors. The decision stated that the Board had reviewed the alleged acts of the civilian Kazakhs when it reevaluated Aliyev’s claims but did not find them to be acts of persecution as contemplated by the Immigration and Nationality Act (“INA”), and therefore did not consider them in assessing the cumulative effect of multiple acts of harassment. Aliyev petitioned this Court for review of the BIA’s denial of his motion to reconsider. DISCUSSION A. Standard of Review “When the BIA issues an opinion, the opinion becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quotation marks omitted). In this instance, as the BIA “did not adopt the decision of the IJ to any extent, nor is the BIA’s per curiam opinion merely supplemental” to the IJ’s decision, id., we review the decision of the BIA alone. We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). The denial of a motion to reconsider is reviewed for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). B. Analysis To establish eligibility for asylum, an applicant must show that he or she is a refugee who has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution on one of these grounds. See 8 U.S.C. § 1101(a)(42); Island v. Gonzales, 412 F.3d 391, 394 (2d Cir.2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d cir.2007). While" }, { "docid": "2210108", "title": "", "text": "not establish membership in a particular social group for purposes of asylum and withholding of removal, citing the Sixth Circuit’s decision in Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir.2005), which held that young, attractive Albanian women who fear being kidnaped and forced into prostitution do not constitute a particular social group for asylum purposes. See id. (“A social group may not be circularly defined by the fact that it suffers persecution. The individuals in the group must share a narrowing characteristic other than their risk of being persecuted.”). Burbiene petitioned for review of the BIA order. II. To qualify for asylum on the basis of a well-founded fear of future persecution, an applicant must prove that she has a well-founded fear that if she returns to her home country she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). Her fear must be both subjectively real and objectively reasonable. Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). “Where, as here, ‘the BIA adopted and affirmed the IJ’s ruling, but also discussed some of the bases for the IJ’s opinion, we review both the IJ’s and BIA’s opinions.’ ” Lin v. Gon zales, 503 F.3d 4, 6-7 (1st Cir.2007) (quoting Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.2007)). We apply the highly deferential substantial evidence standard to the agency’s factual determinations, considering “whether the agency’s ruling is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Wang v. Mukasey, 508 F.3d 80, 83-84 (1st Cir.2007) (internal quotation marks and citation omitted). We review the BIA’s legal determinations de novo, id. at 83, although we give some deference to its interpretations of the INA, Silva, 394 F.3d at 5. Under the INA, persecution “always implies some connection to governmental action or inaction, related to a protected ground.” Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir.2006). A petitioner bears the burden of establishing this necessary link between persecution and government action or inaction. See id. at 70. Country Reports" }, { "docid": "23259841", "title": "", "text": "In re Kone, [ AXX-XXX-XXX ] (Immig. Ct. N.Y. City Apr. 11, 2006), and the BIA did not address the issue. This cursory analysis neglects to make the specific finding required by the regulations of either a fundamental change in circumstances or the possibility of internal relocation, see 8 C.F.R. § 1208.13(b)(1) (“That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(l)(i) of this section.”); accord, 8 C.F.R. § 1208.16(b)(l)(i), and suggests the erroneous belief that voluntary return trips are sufficient, as a matter of law, to rebut the presumption of future persecution to which Kone is entitled. But this cannot be the case because the mere fact of such trips, standing alone, does not suggest either any fundamental change in circumstances or the possibility of internal relocation. In Boer-Sedano v. Gonzales, the Ninth Circuit noted that “return trips can be considered as one factor, among others, to rebut this presumption,” but it rejected the contention that “the existence of return trips standing alone” could do so. 418 F.3d 1082, 1091-92 (9th Cir.2005). We adopt the Ninth Circuit’s position on this question. Because we cannot confidently predict whether the IJ would make either of the requisite findings necessary to rebut the presumption absent this legal error, a remand is warranted. See, e.g., Manzur v. U.S. Dep’t. of Homeland Sec., 494 F.3d 281, 290 (2d Cir.2007). Bah v. Mukasey is instructive in assessing the government’s burden to demonstrate a fundamental change in circumstances. That case involved three women from Guinea who had been genitally mutilated. 529 F.3d at 101. The BIA assumed that each of the three women had been persecuted on account of her membership in a particular social group, but denied the women withholding of removal on a finding that the fact that the mutilation had already occurred automatically rebutted the presumption of future persecution. Id. at 101, 114. We found significant error in the BIA’s conclusion that the fact that the women had already undergone mutilation in and of itself rebutted the presumption of future persecution, and" }, { "docid": "82430", "title": "", "text": "been or might become victims of crime.” The IJ also explained that Granada-Rubio fails to qualify for CAT protection “because the record does not establish a clear likelihpod that a public official in El Salvador would likely acquiesce in or exhibit willful blindness toward any torture inflicted by gang members that the respondent fears.” The BIA affirmed the IJ’s determinations and dismissed Granada-Rubio’s appeal on May 29, 2015. This petition for review followed. We discuss the BIA’s reasoning below. II. “Where the BIA affirms the IJ’s ruling but adds its own discussion, we review both decisions.” Panoto v. Holder, 770 F.3d 43, 46 (1st Cir.2014). “We will uphold a decision so long as it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. (quoting Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir.2014)). “That the record supports a conclusion contrary to that reached by the BIA is not enough to warrant upsetting the BIA’s view of the matter; for that to occur, the record must compel the contrary conclusion.” Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007). We review questions of law de novo. Ziu v. Gonzales, 412 F.3d 202, 204 (1st Cir.2005) (per curiam). A. Asylum and Withholding of Removal To qualify for asylum, an alien must establish, inter alia, that she is unwilling or unable to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(b)(1). The BIA agreed with the IJ’s conclusions that (a) Granada-Rubio did not establish persecution, and (b) Granada-Rubio did not establish that she was part of “a particular social group for asylum purposes.” Either of these conclusions would be sufficient to support a denial of Granada-Ru-bio’s asylum application. See 8 U.S.C. § 1101(a)(42). Assuming, arguendo, that Granada-Rubio established that she has faced or will face persecution, the IJ and the BIA were warranted in finding that Granada-Rubio has not been persecuted based on her" }, { "docid": "22305568", "title": "", "text": "1988). Finally, the IJ concluded that because Rodas’s past experience lacked a nexus to a protected ground, so too did Rodas’s fear of future persecution. Id. at 15. Accordingly, the IJ found Rodas ineligible for either asylum or withholding of removal under the INA. On September 10, 2008, the BIA adopted and affirmed the IJ’s decision. In re Carranza & Rodas, Nos. [ AXXX XXX XXX ] & [ AXXX XXX XXX ] (B.I.A. Sept. 10, 2008). The BIA agreed with the IJ’s conclusion that Rodas failed to “demonstrate[ ] that any harm he encountered or may encounter is ... on account of his political opinion.” Id. The BIA also addressed Rodas’s claim of persecution on account of his membership in a particular social group, an issue the IJ did not address. The BIA rejected that argument, however, finding that the social group on account of which Rodas claimed persecution — defined as “Guatemalan policemen who have registered complaints against official corruption” — lacked the requisite social visibility. Id. Additionally, noting that the REAL ID Act’s “one central reason” standard governs Rodas’s case, the BIA held that Rodas had not demonstrated that membership in any social group was “one central reason” for Rodas’s fear of persecution. Id. DISCUSSION I. Legal Standards “Where, as here, the BIA has adopted and supplemented the IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007). Legal issues, and the application of law to fact, are reviewed de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir.2009). “[B]ecause the IJ found [Rodas] to be credible, we treat the events [ ]he experienced in the past as undisputed facts.” Delgado, 508 F.3d at 705. The agency’s findings of fact are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005). Accordingly, we review such findings under the substantial evidence standard, which requires that they be supported by “reasonable, substantial and probative evidence" }, { "docid": "22305569", "title": "", "text": "Act’s “one central reason” standard governs Rodas’s case, the BIA held that Rodas had not demonstrated that membership in any social group was “one central reason” for Rodas’s fear of persecution. Id. DISCUSSION I. Legal Standards “Where, as here, the BIA has adopted and supplemented the IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007). Legal issues, and the application of law to fact, are reviewed de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir.2009). “[B]ecause the IJ found [Rodas] to be credible, we treat the events [ ]he experienced in the past as undisputed facts.” Delgado, 508 F.3d at 705. The agency’s findings of fact are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005). Accordingly, we review such findings under the substantial evidence standard, which requires that they be supported by “reasonable, substantial and probative evidence in the record when considered as a whole.” Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir.2007) (internal quotations marks omitted). “This standard ‘requires a certain minimum level of analysis from the IJ and BIA,’ as well as ‘some indication that the IJ considered material evidence supporting a petitioner’s claim.’ ” Delgado, 508 F.3d at 705 (internal bracket omitted), quoting Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005). “We will vacate and remand for new findings ... if the agency’s reasoning or its factfinding process was sufficiently flawed.” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir.2009). Asylum is a discretionary form of relief available to certain aliens who qualify as “refugees” within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A). In relevant part, the INA defines a “refugee” as a person who is unable or unwilling to return to his or her native 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." }, { "docid": "23259750", "title": "", "text": "asylum application within 1 year of arriving in the United States” and that “[t]he record also supports the Immigration Judge’s adverse credibility and burden of proof findings.” As noted above, Zheng then filed a timely petition for review in this Court. ANALYSIS We have recently reiterated the relevant standards of review to be employed on this appeal: “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t. of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (alteration and internal quotation marks omitted). We review the agency’s legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA 510 F.3d 377, 379 (2d Cir.2007). Pinto-Montoya v. Mukasey, 540 F.3d 126, 129 (2d Cir.2008) (per curiam). In order to be considered a refugee and therefore eligible for asylum, the INA provides that Zheng must show that he has suffered past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds should he be ordered to return to his native country. See 8 U.S.C. § 1101(a)(42). The statute further provides that an individual, such as Zheng, who alleges that he has engaged in “resistance to a coercive population control program” may be eligible for relief as one who has been persecuted, or will be persecuted, on account of his political opinion. Id.; see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007) (en banc). Past persecution alone is “rarely sufficient in itself to entitle an applicant to asylum,” but it does “automatically give[ ] rise to a rebuttable presumption of a well-founded fear of future persecution.” Poradisova v. Gonzales, 420 F.3d 70, 78" }, { "docid": "22405336", "title": "", "text": "to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). II. Santoso, relying on Mufied v. Mukasey, argues primarily that the IJ and the BIA did not adequately consider whether there exists a pattern or practice of persecution of ethnic Chinese or Catholics in Indonesia. See 508 F.3d 88, 91 (2d Cir.2007) (remanding where “[njeither the IJ nor the BIA appears to have considered Mufied’s claim that there is a pattern or practice of persecution of Christians in Indonesia”). Unlike Mufied, however, in Santoso’s case, the BIA explicitly noted that “[t]he discrimination and sporadic violence in various parts of Indonesia, as discussed by the Immigration Judge, do not establish that there is a pattern or practice of persecution against individuals similarly situated to the respondent.” J.A. at 3; see Mufied, 508 F.3d at 91 (noting that the BIA failed to supplement the IJ’s discussion of persecution and “appeared to base its denial of Mufied’s appeal on its finding that he had personally ‘experienced few problems’ ”). The fact that the BIA cited to the statute governing generally the burden of proof for withholding of removal," }, { "docid": "5144392", "title": "", "text": "The parties disagree as to the scope of review we should employ in considering whether the agency properly denied Ge’s claims for relief. Citing Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005), Ge posits that this is a case where the BIA both adopted and supplemented the IJ’s decision and that, accordingly, we should consider the IJ’s decision, as supplemented by the BIA. We agree with the Government, however, that the BIA conducted its own analysis of Ge’s claims and that the BIA did not expressly adopt the IJ’s decision. Accordingly, we will review the decision of the BIA alone. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159 (2d Cir.2005). There can be no disagreement that we review the agency’s legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility de terminations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). In order to be considered a refugee and therefore eligible for asylum, the INA provides that Ge must show that he has suffered past persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a “well-founded fear of persecution” on such grounds should he be ordered to return to his native country. 8 U.S.C. § 1101(a)(42). A well-founded fear is “a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there is only a slight, though discernible, chance of persecution.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (citations and internal quotation marks omitted). A. The Timeliness of Ge’s Application for Asylum. The INA provides that “[a]ny alien who is physically present in the United States or who arrives in the United States ... may apply for asylum” so long as “the alien demonstrates by clear and convincing evidence that the [asylum] application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8" }, { "docid": "22921777", "title": "", "text": "the decision of the IJ to any extent, nor is the BIA’s per curiam opinion merely supplemental” to the IJ’s decision, id., we review the decision of the BIA alone. We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). The denial of a motion to reconsider is reviewed for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). B. Analysis To establish eligibility for asylum, an applicant must show that he or she is a refugee who has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution on one of these grounds. See 8 U.S.C. § 1101(a)(42); Island v. Gonzales, 412 F.3d 391, 394 (2d Cir.2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d cir.2007). While past persecution may be sufficient, on its own, to establish eligibility for asylum, asylum is discretionary relief that may be denied in certain situations. See 8 C.F.R. § 1208.13(b). Withholding of removal under 8 U.S.C. § 1231(b)(3) is a mandatory form of rehef that requires the applicant to show that it is more likely than not that his “life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b); accord Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). We have held that asylum claims are subject to mixed-motive analysis: “The protected ground need not be the sole motive: ‘the plain meaning of the phrase “persecution on account of the victim’s political opinion,” does not mean persecution solely on account of the victim’s political opinion.’ ” Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir.2007) (quoting Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994)). “Where there are mixed motives for a persecutor’s actions, an asylum applicant need" }, { "docid": "22710209", "title": "", "text": "8 C.F.R. § 1208.13(b)(1)). See also 8 C.F.R. § 1208.16(b)(l)(iii) (providing, in the context of withholding of removal claims, that “[i]f the applicant’s fear of future threat to life or freedom is unrelated to the past persecution, the applicant bears the burden of establishing that it is more likely than not that he or she would suffer such harm”). The BIA reasoned that unlike female genital mutilation, “family pressures to accede to arranged marriages are not necessarily confined to females.” A-T-, 24 I. & N. Dec. at 304. The BIA then found, without discussing other forms of future persecution that Traore may have feared on account of her particular social group, that Traore’s fear of forced marriage was unrelated to the genital mutilation she suffered in the past, and that Traore had failed to meet her burden of showing that she would be subject to such persecution in the future. Id. Finally, the BIA rejected Traore’s CAT claim, holding that Traore “failed to present evidence that it is more likely than not that she would be tortured if she is returned to Mali.” Id. DISCUSSION 7. Standard of Review We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). We review de novo questions of law and the application of law to undisputed fact. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review decisions by the BIA interpreting the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., according to the standard set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.: If the intent of Congress is clear, that is the" }, { "docid": "22650234", "title": "", "text": "more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ’s decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006), the BIA characterized Weng’s conduct as “active and [as having] direct consequences for the victims” of China’s family planning policy. The BIA also affirmed the IJ’s denial of Weng’s application for CAT relief. This appeal followed. DISCUSSION Because the BIA adopted and affirmed the IJ’s decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The “substantial evidence” standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006), and we uphold the IJ’s factual findings if they are supported by “reasonable, substantial and probative evidence in the record,” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir.2007) (internal quotation marks omitted). By contrast, “[w]e review de novo questions of law and the [BIA’s] application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We therefore review de novo the BIA’s conclusion that Weng is subject to the persecutor bar of the Immigration and Nationality Act (“INA”). To be eligible for asylum, an applicant must establish her status as a “refugee” under the INA. 8 U.S.C. § 1158(b)(1)(B). The applicant may do so by demonstrating either that she has suffered “persecution” or that she has “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). The statutory definition of “refugee,” however, incorporates the “persecutor bar”: the definition ex- eludes “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of’ a protected ground. Id.; see also 8 U.S.C. § 1158(b)(2)(A)(i). Consequently, if Weng is a persecutor," }, { "docid": "23081846", "title": "", "text": "Leone war crimes tribunal, against RUF leaders, including those responsible for the RUF’s January 1999 attack on Freetown. The IJ denied the application and ordered Jalloh removed. The BIA, assuming that Jalloh had established past persecution, concluded that the government’s evidence of changed country conditions rebutted the resulting presumption of a well-founded fear of future persecution. It then reasoned that “the severity of any persecution which the respondent may have endured does not rise to a level warranting a grant of asylum based on such past persecution alone.” In re Omaro Jal-loh, No. [ AXX XXX XXX ] (B.I.A. June 13, 2006). Jalloh petitions this court for review. DISCUSSION I. Standard of Review “Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006). We review factual findings under the substantial evidence standard, which requires that findings “be supported by reasonable, substantial[,] and probative evidence in the record.” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir.2007) (quotation marks omitted). Questions of law are reviewed de novo, as are mixed questions of law and fact, including the “proper application of legal principles to the facts and circumstances of the individual case at hand.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). II. Asylum Based on Past Persecution An alien is presumed to have a well-founded fear of future persecution— and is thereby eligible for asylum—if he can show that he “has suffered persecution in the past ... on account of ... membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself ... of the protection of, that country owing to such persecution.” 8 C.F.R. § 1208.13(b)(1). The government may rebut that presumption, however, if it can demonstrate that conditions in the country have changed such that the alien no longer has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1)®. Nevertheless, if the alien “has demonstrated" }, { "docid": "19984985", "title": "", "text": "conditions. The BIA also affirmed the IJ’s denial of relief under the CAT. DISCUSSION “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks omitted). We review the BIA’s factual findings, including the agency’s consideration of relevant evidence of country conditions, under the substantial evidence standard. See Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). However, “when the situation presented is the BIA’s application of legal principles to undisputed facts, ... our review is de novo.” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal quotation marks omitted). I. Past Persecution Under the Immigration and Nationality Act (“INA”), a petitioner is eligible for asylum at the discretion of the Attorney General if he demonstrates that he suffered past persecution or has a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 U.S.C. §§ 1101(a)(42), 1158; see also Xiu Fen Xia v. Mukasey, 510 F.3d 162, 165 (2d Cir.2007). A petitioner is also eligible for withholding of removal if he demonstrates a clear probability of persecution on account of a statutorily-protected ground. See 8 U.S.C. § 1231(b)(3). Statutorily-protected grounds include “political opinion” and “membership in a particular social group.” In dismissing Baba’s appeal, the BIA agreed with the IJ’s finding that “the incidents complained of did not rise to the level of persecution.” In re Biyalo Watara Baba, No. [ A XX XXX XXX ], at 1 (B.I.A. Dec. 14, 2007). Baba contends that this ruling was in error. We agree. The term persecution is not defined in the INA. The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir.2008) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222-23 (B.I.A. 1985)). This court has on several occasions considered the question" }, { "docid": "23115656", "title": "", "text": "B.D. PARKER, JR., Circuit Judge. Petitioner Mahamed Ayenul Islam, a native and citizen of Bangladesh, seeks review of a 34 February 14, 2005, order of the Board of Immigration Appeals (“BIA”) affirming the May 18, 1998, decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied Islam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the basis that Islam’s testimony and documents lacked credibility. See In re Mahamed Ayenul Islam, No. [ A XX XXX XXX ] (B.I.A. Feb. 14, 2005), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 18, 1998). Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the factual findings of the BIA and IJ for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review de novo the IJ’s determination of mixed questions of law and fact, as well as the IJ’s application of law to facts. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. The Asylum Hearing During immigration proceedings, an IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(l). Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record. See Qun Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002). At the same time, as a judicial officer, an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party. See Qun Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 261 (3d Cir.2005). During the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe" }, { "docid": "20206593", "title": "", "text": "Huang’s appeal. The BIA found that “insertion of an IUD does not rise to the level of harm necessary to constitute persecution, absent some aggravating circumstance, which is not present in this case. Moreover, the respondent has not shown that the insertion of an IUD was or would be on account of a protected ground.” In re Xia Fan Huang, No. [ AXXX XXX XXX ] (B.I.A. Oct. 28, 2008) (citing Matter of M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008)). Huang timely petitioned this Court for review of the BIA’s decision. DISCUSSION We have jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(d). When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, following Huang’s petition for review of the BIA’s decision denying relief, her case was remanded for the limited purpose of allowing the BIA to reconsider its decision in light of this Court’s holding in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir.2007). On remand, the BIA issued a brief opinion addressing only the issue presented in Ying Zheng, i.e., whether the insertion of an IUD constitutes persecution, and leaving intact the remainder of its conclusions in its original decision. Therefore, we review the BIA’s original opinion as modified by its subsequent decision, which constitutes the agency’s final order of removal. See 8 U.S.C. § 1252(d). We review the agency’s factual findings under the substantial evidence standard. See id. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). The Attorney General may grant asylum to an alien if he determines that the alien is a “refugee.” 8 U.S.C. § 1158(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Section 101(a)(42) of the Immigration and Nationality Act defines a" }, { "docid": "22376102", "title": "", "text": "The BIA also concluded, without discussion, that “[Amin’s] due process rights were [not] violated.” J.A. 360. Anim then petitioned this court for review, again raising her breach of confidentiality and due process claims. II. When, as in this instance, the BIA adopts and supplements the IJ’s decision, “the factual findings and reasoning contained in both decisions are subject to judicial review.” Niang v. Gonzales, 492 F.3d 505, 511 n. 8 (4th Cir.2007); see also Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (“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.”). We uphold the agency’s decision “unless [it is] manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C). And agency findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. § 1252(b)(4)(B); see also Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir.2007) (stating that “the BIA’s administrative findings of fact [are reviewed] under the substantial evidence rule”). “We also defer to credibility findings that are supported by substantial evidence.” Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). This deference is broad but not absolute: an IJ “who rejects a witnesses’s positive testimony because in his or her judgment it lacks credibility should offer a specific, cogent reason for his [or her] disbelief.” Id. (quoting Figeroa v. U.S. INS, 886 F.2d 76, 78 (4th Cir.1989)). Anim petitions for review of the BIA’s denial of her claims for asylum, withholding of removal, and relief under CAT. The Secretary of Homeland Security or the Attorney General has the discretion to grant asylum to a refugee under 8 U.S.C. § 1158(b). To establish refugee status, an applicant must show that she is “unable or unwilling to return” to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). If she shows that she has suffered past persecution, a presumption arises that she has a" }, { "docid": "12018555", "title": "", "text": "order to be considered' a refugee and therefore eligible for asylum, Alibasic must show that he has suffered past persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds should he be ordered to return to his native country. See 8 U.S.C. § 1101(a)(42). As discussed above, the IJ found that Alibasic had suffered from persecution in the past and the BIA adopted this finding arguendo. Past persecution, however, is “rarely sufficient in itself to entitle an applicant to asylum,” but it does “automatically give[] rise to a rebuttable presumption of a well-founded fear of future persecution.... ” Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). The Government can defeat this presumption “if ‘a preponderance of the evidence establishes that a change in circumstances in the applicant’s country of nationality has occurred such that the applicant’s fear is no longer well-founded.’ ” Id. (quoting Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.2002) (citing 8 C.F.R. § 208.13(b)(1)(i))). A well-founded fear is “a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there is only a slight, though discernible, chance of persecution.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (citations and internal quotation marks omitted). Where, as here, the BIA vacates the decision of the IJ, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We will assume, however, that Alibasic was a credible witness because the IJ found him to be such and the BIA did not disturb that finding. See id. at 271-72. We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406" } ]

[ { "docid": "6991527", "title": "", "text": "contest the trial court’s finding of negligence on Count I and they rely on 46 U.S.C. § 183(a) to limit their liability to the value of the vessel and her freight at the time of the accident under both counts. Because of our disposition of Count II, it is unnecessary to decide whether the plaintiff sufficiently established its negligence case. II Section 14 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 408 provides that it is unlawful “for any person or persons to injure or in any manner whatever impair the usefulness of any . . . work built by the United States . . . for the preservation and improvement of any of its navigable waters . . ..” It is uncontested that the defendant-owner violated this provision. In addition, the relevant portion of section 16 of the same Act provides that any vessel used or employed in violating section 14 is liable for the civil fines of 33 U.S.C. § 411 and for the amount of damage done by the vessel. 33 U.S.C. § 412. It has been consistently held that in actions brought by the United States pursuant to 33 U.S.C. §§ 408, 412 there is no requirement that negligence be shown and that a defendant-vessel is liable if it has been the cause of a violation of 33 U.S.C. § 408. United States v. The M/V Martin, 313 F.2d 851 (7th Cir. 1963); United States v. The Terry E. Buchanan, 138 F.Supp. 754 (S.D.N.Y. 1956); United States v. The Republic No. 2, 64 F.Supp. 373 (S.D.Tex.1946); The Gansfjord, 25 F.2d 736 (E.D.La. 1928), aff’d sub nom. Aktieselskabet Dampskib Gansfjord v. United States, 32 F.2d 236 (5th Cir.), cert. denied, 280 U.S. 578, 50 S.Ct. 32, 74 L.Ed. 629 (1929). Thus, the only question that remains is whether the Limited Liability Act of 1851, 46 U.S.C. § 183(a), may be asserted as a defense by the defendant-vessel. Section 183(a) provides that the liability of the owner of any vessel for damage caused by a collision incurred without the privity or knowledge of the owner" } ]

[ { "docid": "23621921", "title": "", "text": "of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as hereinafter provided for. 33 U.S.C. § 409 (1976). Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections thirteen, fourteen, and fifteen of this Act [33 USC §§ 407, 408, 409] shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 .nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction. 33 U.S.C. § 411 (1976). This circuit has also interpreted 33 U.S.C. § 403 (1976) to prohibit the obstruction of navigable waters by sunken vessels, United States v. Cargill, Inc., 367 F.2d 971, 975 (5th Cir.1966), affd on other grounds sub. nom. Wyandotte Transp. Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), and thus the criminal penalties set out in 33 U.S.C. § 406 (1976) for violation of § 403 may be invoked in this circuit for failure to remove a sunken vessel. 33 U.S.C. §§ 403 and 406 read in relevant part: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited .... 33 U.S.C. § 403 (1976). Every person and every corporation that shall violate any of the provisions of sections nine, ten, and eleven of this Act [33 USC §§ 401, 403, and 404] ... shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment" }, { "docid": "10769424", "title": "", "text": "informant for information leading to the conviction of the wrongdoer and not to provide a means by which an informant may proceed to recover against the violator of the criminal statute the amount he might otherwise receive from a fine which ‘might’ be imposed after conviction of the defendant in a criminal proceeding.” An informer may not, on his own and prior to conviction, institute a qui tam action under 33 U.S.C. § 411 to collect a one-half interest in a fine which is to be paid only after the information given leads to a conviction. One of the asserted grounds for jurisdiction in the instant case is 28 U. S.C. § 2461: “Whenever a civil fine, penalty or pecuniary forfeiture is prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof, it may be recovered in a civil action.” The Reviser’s Note to § 2461 concludes that “[i]f the statute contemplates a criminal fine, it can only be recovered in a criminal proceeding under the Federal Rules of Criminal Procedure, after a conviction.” The Court holds that 33 U.S.C. § 411 provides for a criminal fine which can be enforced only in a criminal proceeding; and that the informer’s one-half interest in the fine so recovered can be sought only after conviction. In dismissing plaintiffs’ qui tam action pursuant to 33 U.S.C. § 411, the Court notes that the Rivers and Harbors Act makes other provisions for its enforcement. Section 413 directs that the Department of Justice “shall conduct the legal proceedings necessary to enforce the [statute]” and that United States attorneys shall “vigorously prosecute all offenders” of the Act “whenever requested to do so by the Secretary of the Army or by [other officials].” But § 413 makes no provision for commencement of a qui tam action under § 411 prior to conviction in a criminal proceeding. See Reuss v. Moss-American, Inc., 323 F.Supp. 848 (E.D.Wis.1971), citing: Bass Anglers Sportsman’s Society of America v. U. S. Plywood-Champion Papers, Inc., 324 F.Supp. 302 (S.D.Tex.1971); Bass Anglers Sportsman’s Society of America v." }, { "docid": "10769419", "title": "", "text": "TIMBERS, Chief Judge. Plaintiffs seek (1) in a qui tam action, recovery of an informer’s one-half interest in the penalty prescribed for discharging refüse into a navigable water of the United States in violation of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 407 and 411 (1964); and (2) injunctive relief to prevent future discharge of refuse. Defendant before answering has moved to dismiss, inter alia, for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. Rule 12(b)(1) and (6), Fed.R.Civ.P. For reasons stated below, the Court grants defendant’s motion to dismiss. Plaintiff Connecticut Action Now, Inc. is a private, non-profit, Connecticut corporation whose purpose is to eliminate all forms of pollution. Plaintiffs David B. Beizer and Rita L. Bowlby are Connecticut citizens and owners of property adjoining Fulling Mill Brook, a tributary of the Naugatuck River which is alleged to be a navigable river of the United States flowing into Long Island Sound. Defendant Roberts Plating Company, Inc. is a Connecticut corporation which allegedly has discharged refuse into Fulling Mill Brook. The allegations of the complaint are taken as true for purposes of the instant motion to dismiss. Jurisdiction is invoked pursuant to 33 U.S.C. §§ 407 and 411 (1964) and 28 U.S.C. §§ 1331,1355 and 2461 (1964). The Rivers and Harbors Act of 1899 provides that it shall be unlawful to discharge “any refuse matter of any kind or description . . . into any navigable water of the United States, or into any tributary of any navigable water .. . ” 33 U.S.C. § 407. The penalty for such wrongful discharge of refuse is set forth in 33 U.S.C. § 411: “Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural" }, { "docid": "3615122", "title": "", "text": "it is not strikingly clear that the “obstruct, impede, or endanger” clause in the latter statute refers back to the “sink, permit or cause to be sunk” clause, the district court rejected the government’s argument that the statute requires all wrecks — including those not obstructing navigation — to be removed, on the basis of precedent in this and other circuits. United States v. Raven, 500 F.2d 728 (5th Cir.1974); United States v. Cavalliotis, 105 F.Supp. 742 (E.D.N.Y.1952). The sunken barge AT-104 is undeniably within a navigable channel. The question, therefore, is whether this fact alone makes out a § 409 violation, or whether there must be a further showing that the AT-104 poses a hazard to navigation (as suggested by the comment in Raven that “[t]he purpose of [§ 409] is the protection of other vessels plying the same waters.” 500 F.2d at 732). We seek guidance from the con struction of the statute followed by the agency with primary responsibility for its enforcement. Though the Corps of Engineers argued to the district court that it may order the removal of all vessels sunk in navigable waterways, the regulations promulgated under § 409 suggest a contrary construction. Thus, when an accident occurs, 33 C.F.R. § 209.190(b)(1) provides: “The District Engineer should ascertain, at once, whether navigation is obstructed or endangered, and if the obstruction must be removed, he should inform the owner promptly of the provisions of the law” (emphasis added). The Corps plainly does not read the statute to require the removal of wrecks which are not obstructing navigable waterways. Neither do we. The government claims that this holding permits Gladders to escape any liability for its negligence. This assertion is certainly true, but the Rivers and Harbors Appropriation Act is not designed to penalize negligence, only to keep the navigable waterways open; if Gladders’s negligence has resulted in no obstruction of the river, Gladders is not subject to any sanction under the Act. See Wyandotte, 389 U.S. at 205, 88 S.Ct. at 387 (“[I]n any case in which the Act provides a right of removal in the" }, { "docid": "20957960", "title": "", "text": "lack of reasonable care in the operation of respondent vessels were affirmatively proved. 3. The respondent vessels are liable to the libelant for damages resulting from the actionable negligence of re-pondents’ owners and their agents, as hereinabove found, which proximately resulted in the damage to Drolls Point Light. 4. The M/V Martin and the Barge MOS-101 were, and each of them was, on April 19, 1956, a vessel used and employed within the meaning of the provisions of 33 U.S.C.A. § 412, in injuring and damaging Drolls Point Light, a work built by the United States for the preservation and improvement of its navigable waters, in violation of 33 U.S.C.A. § 408. 5. As a consequence of the collision, libelant incurred the reasonable costs and expenses of $12,186.99. Libelant is entitled to recover its reasonable costs and expenses upon each theory stated in the libel, namely, in admiralty, for damages proximately resulting from the negligent operation of the respondent vessels and, also, under 33 U.S.C.A. § 412, for damage to the light occasioned by the collision therewith of the respondent vessels. 6. Libelant is entitled to recover a pecuniary penalty against each of the respondent vessels pursuant to the provisions of 33 U.S.C.A. § 412, with reference to 33 U.S.C.A. §§ 408 and 411. The penalty provisions of the Section impose absolute liability, in rem, against any vessel violating the Act, regardless of the negligence or intent of the owners or masters of the vessel. United States v. The Terry E. Buchanan, D.C.S.D.N.Y., 138 F.Supp. 754; United States v. The Republic No. 2, D.C.S.D.Tex., 64 F.Supp. 373. 7. Libelant is entitled to judgment in its favor dismissing the cross-libel herein; and to judgment in its favor against each of the respondent vessels in the amount of $12,186.99, with interest at 6% per annum from April 19, 1956, against the respondent, M/V Martin, for a pecuniary penalty in the sum of $500, and against the respondent, Barge MOS-101, for a pecuniary penalty in the sum of $500, together with its costs. Judgment is ordered accordingly." }, { "docid": "2975089", "title": "", "text": "Western Transportation Co., supra (a strict tort case); Brown & Root Marine Operators v. Zapata Off-Shore Co., 377 F.2d 724 (5th Cir., 1967) (a consensual case); United States Dredging Corp. v. Krohmer, 264 F.2d 339 (2nd Cir., 1959) (a quasi consensual case). This Court has jurisdiction and it is so held. The motion to dismiss will be overruled. Of course, if the petitioners fail to comply with the provisions of the Order entered this date (i. e., fail to surrender the Orco and her freight, or deposit or stipulate the value thereof) these proceedings will be dismissed. Ill Are Liabilities Under 33 U.S.C. § 408 and 33 U.S.C. § 409 Limitable 408, originally passed in 1899, makes it unlawful for any person to injure a United States installation, such as. Mark-land Dam. The United States has successfully maintained in personam and in rem admiralty actions to recover the cost of repair to such properties injured by vessels — all without regard to whether any negligence was involved in the damaging. Hill v. George Engine Co., 190 F.Supp. 417 (E.D.La., 1961) (and cases therein cited — in personam— no negligence shown); United States v. The M/V Martin, 313 F.2d 851 (7th Cir., 1963) (in rem — no negligence shown); United States v. The Republic, 64 F.Supp. 373 (S.D.Tex., 1946) (in rem — no negligence shown); United States v. The Terry E. Buchanan, 138 F.Supp. 754 (S.D.N.Y., 1956) (in rem— no negligence shown). Strangely enough, the question whether a liability under 408 is limitable under the Statute of 1851 (as amended) (46 U.S.C. § 183 et seq.) appears an open one insofar as the reported cases are concerned. The petitioners, pointing to the broad “any loss, damage * * done, occasioned or incurred” in the limitation statute, contend the liability is limitable. The petitioners also rely strongly on The Stonedale, 2 W.L.R. 1075 (1954), (aff. H.L. — 1955, 3 W.L.R. 203 intimating that a liability for structural damage to a Government property is included within the term “damage” as used in the Limitation Statute. The United States claims the statute inherently protects" }, { "docid": "9414607", "title": "", "text": "(1947), 164 F.2d 111, a scow was held liable in rem for a penalty incurred by discharging a quantity of lumber into the tidal waters of New York harbor in violation of 33 U.S.C.A. § 441. In The President Coolidge v. United States, 9 Cir. (1939), 101 F.2d 638, a penalty assessed against a libelee was affirmed. Even though the owner of the vessel had issued orders prohibiting the throwing of refuse into the harbor of Honolulu, the act involved, 33 U.S.C.A. § 407, makes the action complained of unlawful, and the vessel employed in violating said section was held liable. The action, even though unintentional, was held a violation of the act. The court said, at 640, that any other construction of the statute would change it from one of prohibition to one requiring merely due care. In United States v. The Republic No. 2, 64 F.Supp. 373, at 377 (S.D.Texas 1946), the court, by a careful analysis of §§ 408, 411 and 412, supra, demonstrated that the government may recover from any vessel used in violating § 408, the pecuniary penalties fixed in § 411 and, in addition thereto, the amount of damages done by such vessel, where an injury to guide walls maintained by the government in navigable waters was done by such vessel, even though there was no negligence shown. Cf. Hill v. George Engine Company, Inc., 190 F.Supp. 417, 419 (E.D.La. 1961). Several district courts are in accord with the above rulings. For instance, The Gansfjord, 25 F.2d 736 (E.D.La. 1928), aff’d Aktieselskabet Dampskib Gansfjord v. United States, 5 Cir. (1929), 32 F.2d 236, cert. denied, 280 U.S. 578, 50 S.Ct. 32, 74 L.Ed. 629, emphasizes the inapplicability of the theory of negligence in an action such as that in the case at bar. At 737, the court said: “The claimant, although it admits that criminal prosecution of the master and pilot is not a necessary condition precedent to suit under the .statutes, insists that there is no evidence of their negligence, seeking to capitalize the fact that the testimony of the lighthouse tender was" }, { "docid": "13148523", "title": "", "text": "and is unlawful under Section 408. Section 411 makes natural persons and corporations who are guilty of violating Section 408 punishable by a fine of not less than $500 nor more than $2,500, and/or natural persons punishable in addition by imprisonment of not less than 30 days nor more than one year. The first paragraph of Section 412 provides for the revocation or suspension of the license of any master, pilot, engineer, etc., convicted under Section 408, and the second paragraph of Section 412 provides that the Government may recover from any boat, vessel, etc., used or employed in violating Section 408, the pecuniary penalties fixed in Section 411 and “in addition thereto” the amount of damages done by such boat, vessel, etc. Based on the wording of Sections 408, 411, and 412, I think the Government is right, and that it may recove\" here both the above-stated damages and a penalty, which is fixed at $500 for each injury, making a total recovery of $6,500. 1'b is view is upheld in New England Dredging Co. v. United States, 1 Cir., 144 F. 932, 933. The Statute under construction there was the Act of March 3, 1899, and Sections 13 and 16 thereof, which are now Sections 407 and 411 of 33 U.S.C.A. The proceeding was in rem under Section 13 (now Section 407) against a boat or vessel for unlawfully discharging refuse matter into the navigable waters of the United States. The District Court permitted the recovery of a penalty under Section 16 (now Section 411), and the Circuit Court of Appeals, in affirming the decision, uses this language, which I think is the rule applicable to the case here: “The scow in question belonged to the New England Dredging Company, and was loaded with dredged material which was discharged by the voluntary act of the scowmen in charge into waters af the United States covered by the statute to which we have referred. The act of the scowmen was without orders from the owner, the person in charge of the dredge, or the captain of the tugboat, and" }, { "docid": "875958", "title": "", "text": "as discussed below, the court considers it unnecessary to reach the various other grounds raised in the motions to dismiss and expresses no opinion in regard to them. Plaintiff’s action and all relief sought is grounded upon defendants’ alleged violations of certain provisions of the Rivers and Harbors Act of 1899 (33 U.S.C. § 401 et seq.). Specifically it is charged that defendants have violated section 407 which declares, inter alia: [I]t shall not be lawful to throw, discharge or deposit * * * any refuse matter * * * into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; * * *. Plaintiff seeks to recover the fines imposable under section 411 which provides : Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408 and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving infor mation which shall lead to conviction, (emphasis added). Beyond doubt, section 407 established a crime and section 411 establishes criminal sanctions to be imposed for its violation. Plaintiff relies solely upon the last phrase of section 411 allowing a person furnishing information leading to conviction to share in any fine imposed as a basis for implying some private right of enforcement. Such an implication runs counter to the clear import of the statute which establishes a reward but not a, right of private enforcement. Such an implication would also run contrary to fundamental principles of criminal law. First, criminal statutes cannot be enforced by civil actions. United States v. Claflin, 97 U.S. 546," }, { "docid": "4981191", "title": "", "text": "of reasonable care, the government determines the wreck should be removed, it may either raise the vessel and seek reimbursement of costs or obtain an injunction directing the negligent party to remove the wreck. Wyandotte Transp. Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); University of Texas Medical Branch at Galveston v. United States, 557 F.2d 438 (5 Cir. 1977); In re Marine Leasing Services, Inc., 328 F.Supp. 589 (E.D.La.1971), aff’d. 471 F.2d 255, 5 Cir. The government first asserts that under both § 403 and § 409 it may require removal of any wreck or sunken vessel within a body of navigable water, irrespective of whether the vessel obstructs navigation or reduces navigable capacity. We disagree. Section 409 provides: “It shall not be lawful to ... voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels, ... in such manner as to obstruct, impede, or endanger navigation.” 33 U.S.C. § 409. (Our emphasis). The language of § 409 has long been interpreted as requiring removal of the vessel only if it is an obstruction or hazard to navigation. United States v. Cavalliotis, 105 F.Supp. 742 (E.D.N.Y.1952) (government’s failure to prove vessel constitutes obstruction precludes finding of guilt in criminal proceedings under § 409). In United States v. Raven, 500 F.2d 728, 732 (5 Cir. 1974), the Fifth Circuit recently held the purpose of this statute is to protect other vessels plying the same waters. A sunken vessel that presents no hazard to other vessels in the course of navigation is not an obstruction and hence not prohibited by § 409. Similarly, § 403 states: “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited.” 33 U.S.C. § 403. Obviously, the phraseology of § 403 is broader than that of § 409, and requires somewhat different interpretation. In Sierra Club v. Morton, 400 F.Supp. 610 (N.D.Cal.1975), the court recognized the requirement of an obstruction and noted the difference between obstructions to" }, { "docid": "9872601", "title": "", "text": "federal government under the Pollution Act. Affirmed. . As used in the Federal Water Pollution Control Act, the words “remove” or “removal” refer to removal of . oil or hazardous substances from the water and shorelines or the taking of such other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches!.] 33 U.S.C. § 1321(a)(8). ’ In this opinion, we sometimes use the word “cleanup” to refer to the same activities. . The district court’s opinion is reported at 435 F.Supp. 798 (E.D.Va.1977). . Once a shipowner shows that a loss caused by its vessel was not due to negligence within the owner’s privity or knowledge, the Limitation Act limits the owner’s liability for the loss to the value of the owner’s interest in the vessel and her pending freight. . The Federal Water Pollution Control Act sets a shipowner’s maximum liability for oil spill removal costs incurred by the United States at a figure computed with reference to the gross tonnage of the vessel causing the pollution. The limitation in force at the time of the oil spill in this case was the lesser of $100 per gross ton or $14,000,000. Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, § 2, 86 Stat. 862, 866. A 1977 amendment to the law increases a barge owner’s potential liability to the greater of $125 per gross ton or $125,000. Clean Water Act of 1977, Pub.L. 95-217, § 58(d)(2), 91 Stat. 1566, 1595 (codified at 33 U.S.C. § 1321(f)(1)). . The Rivers and Harbors Act of 1899 was enacted to provide penalties for creating obstructions or nuisances in the navigable waters of the United States. See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 663-66, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). Section 13 of the Act is often denominated the Refuse Act, although some commentators use that term to refer to the entire statute. See 411 U.S. at 658 n. 5, 93 S.Ct. 1804." }, { "docid": "10769428", "title": "", "text": "dismissal urged by defendant. To summarize, the Court concludes as follows: (1) There is no right, prior to conviction, to maintain a private qui tarn action under 33 U.S.C. § 411 to recover criminal penalties for unlawful discharge into navigable waters. (2) The Court lacks jurisdiction under 28 U.S.C. § 2461 to entertain an action to recover a criminal fine or forfeiture. (3) Plaintiffs have failed to plead or prove the requisite jurisdictional amount to maintain the action under 28 U.S.C. § 1331. ORDER Ordered that defendant’s motion to dismiss the complaint is granted, with costs. . See 2 ERC 1170 (October 5, 1970). . 28 U.S.C. § 2461 was enacted to provide a basis for the recovery of a civil fine or forfeiture when the statute does not specify the mode of recovery. Plaintiffs point out that § 2461 has been utilized to effect the recovery of a fine which is prescribed in a criminal statute. See, e. g„ 14 U.S.C. § 638 (1964). However, in each such situation (where the criminal penalty could be enforced by either debt or information) there was no provision for an informant’s right to recover a fraction of the criminal penalty in a qui tam action. . The jurisdictional counterpart to § 2461 is found in 28 U.S.C. § 1355 (1964). . Since the Court has held that a qui tam action under § 411 will not lie, plaintiffs may not use the proposed fine under § 411 as an amount in controversy. . See also, Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C.Cir.1970)- (plaintiffs sought review of the Secretary of Agriculture’s failure to take action on a petition to restrict the use of DDT; jurisdiction based on the Administrative Procedure Act, 5 U.S.C. § 702 (Supp. V, 1969)) ; Citizens Committee For Hudson Valley v. Volpe, 425 F.2d 97 (2 Cir. 1970) (citizens group obtained an injunction to prevent the Army Corps of Engineers from dredging and filling the Hudson River; jurisdiction likewise based on the Administrative Procedure Act). . Plaintiffs’ complaint appears to challenge the United States Attorney’s inaction" }, { "docid": "3615121", "title": "", "text": "from Gladders for the costs of raising it. It follows that the government’s claim that the court usurped the Corps of Engineers’s authority to determine whether — as a matter of preference — the sunken vessel ought to be raised is untenable. The question of whether a wreck poses an obstacle is important only if the government’s power to order negligent sinkers to remove wrecks is limited to wrecks that obstruct navigation or navigable capacity. Accordingly, we turn to the government’s contention that the district court incorrectly applied the statutes defining the circumstances under which a sunken vessel is obliged to be removed. 33 U.S.C. § 403 provides: “The creation of any obstruction ... to the navigable capacity of any of the waters of the United States is prohibited .. ..” 33 U.S.C. § 409 provides: “It shall not be lawful to ... sink, or permit or cause to be sunk, vessels or other craft in navigable channels; ... [or to perform other acts] in such manner as to obstruct, impede, or endanger navigation.” Though it is not strikingly clear that the “obstruct, impede, or endanger” clause in the latter statute refers back to the “sink, permit or cause to be sunk” clause, the district court rejected the government’s argument that the statute requires all wrecks — including those not obstructing navigation — to be removed, on the basis of precedent in this and other circuits. United States v. Raven, 500 F.2d 728 (5th Cir.1974); United States v. Cavalliotis, 105 F.Supp. 742 (E.D.N.Y.1952). The sunken barge AT-104 is undeniably within a navigable channel. The question, therefore, is whether this fact alone makes out a § 409 violation, or whether there must be a further showing that the AT-104 poses a hazard to navigation (as suggested by the comment in Raven that “[t]he purpose of [§ 409] is the protection of other vessels plying the same waters.” 500 F.2d at 732). We seek guidance from the con struction of the statute followed by the agency with primary responsibility for its enforcement. Though the Corps of Engineers argued to the district court" }, { "docid": "4337065", "title": "", "text": "offender should thereby escape his due. We are not here required to consider whether the statute creates rights on behalf of persons injured by an obstruction to navigation; we are concerned with the rights of the United' States, the prime beneficiary of the statute, to recover its removal costs. It seems altogether plain that if Congress had done nothing more than prohibit such obstructions or make them unlawful, the Attorney General could have enforced the statute by any appropriate means, including a suit for recovery of amounts expended by the United States in removing the obstructions, even without a direction to him to enforce the Act. such as is contained in 33 U.S.C. § 413.. United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888). We see no basis for thinking-that the imposition of criminal penalties and the specific authorization of injunctive relief for a particular purpose indicated a Congressional desire to withhold-a remedy which in many instances will1 be more appropriate. Against this the City relies on United States v. Zubik, 295 F.2d 53 (3 Cir. 1961) and United States v. Bethlehem Steel Corp., 319 F.2d 512 (9 Cir. 1963), cert denied, 375 U.S. 966, 84 S.Ct. 484, 11 L.Ed.2d 415 (1964), refusing to allow the-United States to recover damages for-the removal of a wrecked ship which the owner had abandoned. We need not determine whether if that precise issue-should arise in this circuit, we would' follow those decisions or Judge Browning's dissent in the Bethlehem ease. It is enough here that the detailed provisions with respect to wrecked vessels-contained in 33 U.S.C. §§ 409, 411, 412, 414 and 415, afford a far stronger basis, for immunizing the owners of wrecked, vessels from in personam liability for the costs of removal than any of the statutes relevant to this case. Indeed, the author of the principal opinion in the Bethlehem-case seemingly assumed that the Government could have recovered the costs off dredging the channel on the facts in: Republic Steel. 319 F.2d 518. Affirmed." }, { "docid": "13148522", "title": "", "text": "(c) The views of the counsel and the witnesses respecting the actual damages caused by the injury on January 17, 1944, and the one on February 28, 1944, take a wide range, but considering the Stipulation and all the evidence, and using “judgment and estimate,” I find the actual damages caused the guide walls 'by the injury of January 17, 1944, to be $2,500, and the actual damages caused the guide walls by the injury of February 28, 1944, to be $3,000. 1. There being no negligence on the part of the owners, operators, and those in charge of the Tug and Barges, I take it the Government cannot recover at common law. However, the suit is brought by the Government under the Act of Congress of March 3, 1899, 30 Stat. 1152, 1153, a part of which is now Sections 408, 411, and 412, 33 U.S.C.A., the Government claim ing the right to recover both the damages and penalties under Section 412. Clearly, the injury to the guide walls comes within the scope of and is unlawful under Section 408. Section 411 makes natural persons and corporations who are guilty of violating Section 408 punishable by a fine of not less than $500 nor more than $2,500, and/or natural persons punishable in addition by imprisonment of not less than 30 days nor more than one year. The first paragraph of Section 412 provides for the revocation or suspension of the license of any master, pilot, engineer, etc., convicted under Section 408, and the second paragraph of Section 412 provides that the Government may recover from any boat, vessel, etc., used or employed in violating Section 408, the pecuniary penalties fixed in Section 411 and “in addition thereto” the amount of damages done by such boat, vessel, etc. Based on the wording of Sections 408, 411, and 412, I think the Government is right, and that it may recove\" here both the above-stated damages and a penalty, which is fixed at $500 for each injury, making a total recovery of $6,500. 1'b is view is upheld in New England Dredging" }, { "docid": "18903242", "title": "", "text": "F.Supp. 748 (D.C. Miss., 1977); United States v. Atlantic Richfield Co., supra. Therefore, the same shall be enforced against the Defendants. Plaintiffs are hereby awarded a $5,000 penalty under the Federal Water Pollution Control Act. We shall now turn to the aspect of the penalties requested by the United States under the provisions of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. Section 13 of the Act, 33 U.S.C. § 407, provides, as is herein pertinent: “It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged or deposited either from or out of any ship, barge, or other floating craft of any kind any refuse matter into any navigable water of the United States . . . ” Section 16 of the same Act, 33 U.S.C. § 412 reads in part: “[A]ny boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407 ... of this title shall be liable for the pecuniary penalties specified in Section 411 of this title,” . This Act is far reaching in its scope. It prohibits virtually all deposits of foreign matter into the navigable waters, except liquids flowing from streets and sewers. United States v. Kennebec Log Driving Co., 491 F.2d 562 (C.A. 1, 1973), cert. den., 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Clearly, oil is “refuse matter” within the meaning of the Act. United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Ballard Oil Co. of Hartford, 195 F.2d 369 (C.A. 2, 1952). 33 U.S.C. § 411 authorizes the imposition of penalties “not exceeding $2,500 nor less than $500.” In setting the amount of these statutory penalties, federal courts possess broad discretionary faculties. See, United States v. Anaconda Wire & Cable Co., 342 F.Supp. 1116 (D.C.N.Y., 1972). The gross negligence leading to the COLOCOTRONI’s discharge of enormous amounts of exceedingly polluting oil, as well as the seriousness and extremely ad verse effect of said oil spill" }, { "docid": "21981192", "title": "", "text": "ORDER WILLIAM N. GOODWIN, District Judge. Section 16 of the Rivers and Harbors Act, 33 U.S.C. § 411, provides: “§ 411. Penalty for wrongful deposit of refuse; use of or injury to harbor improvements, and obstruction of navigable waters generally “Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” (Emphasis supplied) The defendant moves for an order dismissing plaintiff’s complaint, contending that plaintiff has no standing to sue. In opposition to defendant’s motion, plaintiff contends that the last clause of the Rivers and Harbors Act, 33 U.S.C. § 411, grants him the right to bring his action. He premises his contention on his claim that this congressional enactment implies that a civil action by an informant is permissible if the informant seeks to recover his “bounty”. This Court concludes that Congress in enacting this criminal statute intended to reward an informant for information leading to the conviction of the wrongdoer and not to provide a means by which an informant may proceed to recover against the violator of the criminal statute the amount he might otherwise receive from a fine which “might” be imposed after conviction of the defendant in a criminal proceeding. If plaintiff’s contention is correct, the Court would be in the awkward position of determining priority between a criminal prosecution by the United States through the United States Attorney and a civil suit under the same section by an informant. It would be unreasonable to conclude that a Court would entertain both actions simultaneously or consecutively. The Court concludes" }, { "docid": "20830421", "title": "", "text": "OPINION AND FINAL JUDGMENT CHARLES R. SCOTT, District Judge. Plaintiff, a resident and citizen of Nassau County, Florida, seeks assess ment of fines against defendant, a sulfite manufacturer, who allegedly discharges refuse into the Amelia River in that county. Plaintiff bases his claim for relief upon 33 U.S.C. §§ 407 and 411, and purports to sue both for himself and on behalf of the United States of America through a qui tam action. § 407 clearly establishes that certain pollution of navigable waters shall “not be lawful”, while § 411 provides, in part, that anyone who shall “instigate a violation” of § 407 shall “ * * * be guilty of a misdemean- or, and on conviction thereof shall be punished by a fine not exceeding $2,-500 nor less than $500, or by imprisonment * * * for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction”, [emphasis added] Plaintiff seeks to invoke the sanctions of § 411 through a qui tam proceeding, i. e., an action brought on behalf of the government by an informer seeking civil penalties for violation of a statute. The sanctions for violation of § 407, however, as provided in § 411 (above), are clearly criminal. They appear, therefore, to be beyond the scope of qui tam proceedings- — and, indeed, plaintiff has been unable to show this Court any case wherein such actions have been allowed to invoke criminal penalties. On the contrary, ease law indicates that criminal statutes can neither be enforced by civil action, United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082 (1878); United States v. Jourden, 193 F. 986 (9th Cir. 1912), nor by private parties. Keenan v. McGrath, 328 F.2d 610 (1st Cir. 1964). The conclusion that plaintiff is without authority to proceed under these statutes is further compelled by the express mandate of 33 U.S.C. § 413 placing enforcement of §§ 407 and 411" }, { "docid": "15178586", "title": "", "text": "cases here concern oil spills that the lower courts found were properly reported by agents of the appellees under the mandatory disclosure provisions. In Le Beouf, the lower court granted summary judgment against the government’s suit to recover a $2,500 penalty assessed by the Coast Guard under section 11(b)(5) of the WQIA, 33 U.S.C. § 1161(b)(5) (1970), which imposes strict liability for a penalty, denominated “civil,” of up to $10,000 on the owner or operator of any vessel or facility from which oil is knowingly discharged in harmful quantities. In T/B CTCO, the lower court dismissed the government’s in rem action against appellee CTCO’s barges for violation of the Rivers and Harbors Appropriations Act of 1899 (Refuse Act), 33 U.S.C. §§ 407 et seq. (1970), which prohibits the discharge of refuse into navigable waters, id. § 407, makes any violation of the Act by a person or corporation a misdemeanor punishable by a fine or imprisonment, id. § 411, and authorizes an in rem action for the amount of the fine against any vessel used in the violation, id. § 412. Ruling that the statutory immunity provisions — section 11(b)(4) in Le Beouf, and its virtually identical successor, section 311(b)(5) in T/B CTCO — should be interpreted to bar imposition of any monetary sanction that is what they deemed “criminal in nature,” both courts reasoned that allowing use of evidence derived from a party’s compliance with the compulsory reporting requirement would implicate the fifth amendment privilege against self-incrimination and frustrate the purpose of the immunity provision by discouraging disclosure of spills. Both courts unnecessarily concerned themselves with the nature of the monetary penalties imposed. Such inquiries are necessary only when some constitutional protection is implicated by the imposition of a penalty or the statutory language is ambiguous. In this case, no constitutional right is involved. The fifth amendment privilege against self-incrimination does not extend to corporations. California Bankers Association v. Shultz, 416 U.S. 21, 55, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); George Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968). If appellees" }, { "docid": "9414606", "title": "", "text": "other established marks, * * » 33 U.S.C.A. § 411 provides: “Every person and every corporation that shall violate, * * * the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor * * § 412 of said title provides, in the last sentence thereof, as follows: “And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title shall be liable for the pecuniary penalties specified in section 411 of this title, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, * * * and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.” These statutory provisions are part of the legislation enacted by Congress for the preservation and protection of navigable waters. Thus in United States v. The Helen, 2 Cir. (1947), 164 F.2d 111, a scow was held liable in rem for a penalty incurred by discharging a quantity of lumber into the tidal waters of New York harbor in violation of 33 U.S.C.A. § 441. In The President Coolidge v. United States, 9 Cir. (1939), 101 F.2d 638, a penalty assessed against a libelee was affirmed. Even though the owner of the vessel had issued orders prohibiting the throwing of refuse into the harbor of Honolulu, the act involved, 33 U.S.C.A. § 407, makes the action complained of unlawful, and the vessel employed in violating said section was held liable. The action, even though unintentional, was held a violation of the act. The court said, at 640, that any other construction of the statute would change it from one of prohibition to one requiring merely due care. In United States v. The Republic No. 2, 64 F.Supp. 373, at 377 (S.D.Texas 1946), the court, by a careful analysis of §§ 408, 411 and 412, supra, demonstrated that the government may recover from any vessel" } ]

[ { "docid": "10682269", "title": "", "text": "the decisions of the Office of Compliance Board when ruling on discrimination and retaliation claims brought under the CAA. Pl.’s Opp’n at 11-18. These arguments all fail. The Court will consider each in turn. A. Applicability of Title VII Caselaw to CAA Discrimination and Retaliation Cases Ms. Newton argues that her hostile work environment and retaliation claims should be governed by principles outlined in Office of Compliance Board rulings rather than judicial interpretations of Title VII. Pl.’s Opp’n at 11-17. Ms. Newton has not identified any case in support of this theory, and precedent weighs against her. Courts have consistently relied on judicial interpretations of Title VII when addressing the substance of employment discrimination, hostile work environment, and retaliation claims brought under the CAA. See, e.g., Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 706 (D.C.Cir.2009) (“The CAA incorporates much of Title VIPs substantive law, but it establishes its own comprehensive administrative regime — including jurisdictional provisions.”); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C.Cir.2008) (noting that Title VII “applies to offices in the Legislative Branch as a result of the Congressional Accountability Act” and analyzing CAA discrimination and hostile work environment claims as Title VII claims); Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 15 (D.C.Cir.2006) (presuming that Title VII principles apply to retaliation under the CAA); Moran v. U.S. Capitol Police Bd., 887 F.Supp.2d 23, 30 (D.D.C.2012) (“Although the CAA contains its own retaliation provision, courts refer to the body of case law regarding discrimination under Title VII to evaluate claims of retaliation under the CAA.”); Herbert v. Office of the Architect of the Capitol, 839 F.Supp.2d 284, 291 n. 2 (D.D.C.2012) (noting that discrimination and retaliation “[cjlaims brought under the CAA are analyzed under Title VIPs familiar framework and standards____Although the CAA includes its own anti-retaliation provision ... courts routinely rely upon Title VII case law when evaluating whether a challenged employment action is sufficiently adverse under the CAA’s anti-retaliation provision.”); Hollabaugh v. Office of the Architect of the Capitol, 847 F.Supp.2d 57, 66 (D.D.C.2012) (“Claims arising under Section 1317" } ]

[ { "docid": "18204098", "title": "", "text": "is correct, there is no support for his contention that any omission was “intentional so as to avoid ... [the] consideration of exculpatory information when [Human Resources] processed the discipline request.” Id. In other words, the inference is not justifiable based upon the record created by the parties, especially since the specific witness statements that Herbert contends were omitted are, if anything, \"inculpatory” in the sense that they are consistent with the AOC's interpretation of the events in question. See Def.’s Stmt. Exs. 4, 7, 9. . The initial request did not cite Herbert's \"inappropriate language,” though it was subsequently incorporated into the final letter of reprimand. While the parties disagree as to how this came about, it is undisputed that Williams at some point in the process preferred to limit the reprimand to Herbert’s refusal to move furniture. Def.’s Stmt. ¶ 27; PL’s Stmt. ¶ 27. . In enacting the CAA, Congress extended the protections of Title VII to employees of the legislative branch. 2 U.S.C. § 1311(a)(1). It also includes its own anti-retaliation provision. 2 U.S.C. § 1317(a). Claims arising under that provision are analyzed under the familiar framework and standards governing Title VII’s anti-retaliation provision. See, e.g., Timmons v. U.S. Capitol Police Bd., 407 F.Supp.2d 8, 11 (D.D.C.2005); Bolden v. Office of Architect of Capitol, No. 01 Civ. 251(CKK), 2005 WL 607875, at *4-5 (D.D.C. Mar. 15, 2005); Trawick v. Hantman 151 F.Supp.2d 54, 62-63 (D.D.C.2001), aff'd, No. 01-5309, 2002 WL 449777 (D.C.Cir. Feb. 21, 2002). Indeed, courts routinely rely upon Title VII case law when evaluating whether a challenged employment action is sufficiently adverse under the CAA’s anti-retaliation provision. See, e.g., Clark v. Hantman, No. 02-5313, 2003 WL 21018860, at *1 (D.C.Cir. Apr. 29, 2003) (per curiam); Vanover v. Architect of Capitol, No. 01-5352, 2002 WL 31027573, at *1 (D.C.Cir. Sept. II, 2002) (per curiam). . Highlighting that Herbert engaged in arguably protected activity subsequent to the issuance of the letter of reprimand, the AOC argues that Herbert was not, in fact, dissuaded from making or supporting a charge of discrimination. However, the standard of “material" }, { "docid": "10368372", "title": "", "text": "the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The purpose of the CAA is to make the guarantees of Title VII of the Civil Rights Act of 1964, among other enumerated laws, applicable to the Legislative Branch. See 2 U.S.C. § 1302. While the Library is technically an arm of Congress, see 2 U.S.C. § 171 (Congress establishes for itself a library), the CAA’s protection does not extend to Library employees. See 2 U.S.C. § 1301(3) (providing that the CAA applies to any employees or applicants for employment in nine specific legislative offices, of which the Library of Congress is not one). Rather, Title VII applies to the Library by its own terms. See 42 U.S.C. § 2000e-16(a) (“All personnel actions affecting employees or applicants for employment ... in ... the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.”). Plaintiffs claims based on the CAA therefore will be dismissed for lack of subject matter jurisdiction. With respect to the majority of plaintiffs allegations of national origin and gender discrimination under Title VII, the Library correctly argues that Ms. Baker has failed to exhaust her administrative remedies. Title VII confers the right to file a civil action in federal court only when a party has been “aggrieved by the final disposition of his [administrative] complaint, or by the failure to take final action on his complaint.” 42 U.S.C. § 2000e-16(c). In June 1997, Ms. Baker did file a complaint with the Library’s EEOCO, but she did not raise any allegations of race or national origin discrimination; nor did she assert gender discrimination beyond her claim of sexual harassment in the form of a hostile work environment. See Defendants’ Reply in Support of Motion to Dismiss, Appendix A, Exhibit A, EEOC Complaint. It is worth noting that the form constituting plaintiffs original complaint included a list of bases for the alleged discrimination, allowing plaintiff to check a box for each basis that applied to her. Although the list of potential bases of discrimination included race, color, sex" }, { "docid": "9864323", "title": "", "text": "a pretext for discriminating against him on the basis of race. The Court must therefore grant defendant’s summary judgment motion on plaintiffs discrimination claim. III. RETALIATION As defendant correctly notes in its Reply, “Plaintiffs Opposition does not appear to address any of Defendant’s arguments regarding retaliation.” (Def.’s Reply to Pl.’s Opp. to Mot. for Summ. J., Mar. 6, 2014 [EOF No. 28]. at 7.) In fact, the word “retaliation” does not even appear in plaintiffs opposition. For this reason alone, the Court may treat defendant’s argument as conceded and defendant’s motion for summary judgment on plaintiffs retaliation claim will be granted. See Hopkins v. General Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”); Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191 F.Supp.2d 154, 159 (D.D.C.2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”). That said, even if the Court were to proceed' to the merits of plaintiffs retaliation claim, defendant’s motion for summary judgment on this claim would still be granted. Under the CAA, it is-“unlawful for an employing office to intimidate, take reprisal against, or otherwise discriminate against, any covered employee because the covered employee has opposed any practice made unlawful by [the CAA,] or because the covered employee has initiated proceedings, made a charge, or testified, assisted, or participated in any manner in a hearing or other proceeding under [the CAA.]” 2 U.S.C. § 1317. These claims are analyzed under the same rubric as Title VII retaliation claims. See Newton v. Office of the Architect of the Capitol, 905 F.Supp.2d 88, 92 (D.D.C.2012). In order to make out a prima facie case, a plaintiff must establish that “(1) that he engaged in a statutorily protected activity; (2) that he suffered a materially adverse action by his employer,” Jones" }, { "docid": "9917826", "title": "", "text": "summary judgment is proper. Id. at 252, 106 S.Ct. 2505. II. The Congressional Accountability Act of 1995 The Congressional Accountability Act (“CAA”), 2 U.S.C. § 1301 et seq., makes several anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., applicable to the legislative branch of the federal government. 2 U.S.C. § 1302. Under the statutory framework of the CAA, federal courts only have jurisdiction over civil actions brought by a covered employee if that employee has completed mediation and counseling requirements under the statute. 2 U.S.C. §§ 1404, 1408. The covered employee must commence an action under the CAA by requesting counseling not later than 180 days after the alleged discriminatory action, 2 U.S.C. § 1402(a), and once the 30-day counseling period ends, the employee can then file a request for mediation with the Office of Compliance, 2 U.S.C. § 1403(a). A civil action may be commenced only to seek redress for a violation for which the employee has completed both counseling and mediation. 2 U.S.C. § 1408(a). In the instant case, it is undisputed that plaintiff first sought counseling for defendant’s allegedly discriminatory acts on October 5, 2001. Brady, 360 F.Supp.2d at 102 n. 5. Accordingly, this Court has held that any claims in the Amended Complaint, with the exception of the hostile work environment claim, that are based on conduct occurring prior to April 8, 2001, ie., 180 days prior to the date plaintiff sought counseling as required by the CAA, are time-barred and will not be considered by the Court. See id. at 102. Plaintiff has identified three discrete acts of alleged discrimination between April 8, 2001 and his October 5, 2001 request for counseling: (1) plaintiffs April 10, 2001 demotion (Am. Comply 54); (2) the April 2001 appointment of Bill Lomax as Shift Supervisor (id. ¶ 55); and (3) the June 2001 appointment of Bob Tolbert as Evening Shift Supervisor (id. ¶ 56). This Court will therefore consider only these alleged acts of discrimination when reviewing plaintiffs claim of impermissible employment discrimination based on" }, { "docid": "14606667", "title": "", "text": "Kowal, 16 F.3d at 1276. It is the plaintiffs burden of persuasion to establish the existence of subject matter jurisdiction by a preponderance of the evidence. Thompson v. Capitol Police Board, 120 F.Supp.2d 78, 81 (D.D.C.2000). Where a motion to dismiss presents a dis pute over the factual basis of the court’s subject matter jurisdiction, the Court “may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant” and therefore “must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000); In re Swine Flu Immunization Products Liability Litigation, 880 F.2d 1439, 1442-43 (D.C.Cir.1989). I. Statutory Framework: The Congressional Accountability Act of 1995 The Congressional Accountability Act (“CAA”) makes several anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., applicable to the legislative branch of the federal government. 2 U.S.C. §§ 1301-1438. Under the statutory framework of the CAA, federal courts only have jurisdiction over civil actions brought by a covered employee if that employee has completed mediation and counseling requirements under the statute. 2 U.S.C. §§ 1404,1408. The covered employee must commence an action under the CAA by requesting counseling not later than 180 days after the alleged discriminatory action, 2 U.S.C. § 1402(a), and once the 30-day counseling period ends, the employee can then file a request for mediation with the Office of Compliance. 2 U.S.C. § 1403(a). A civil action may commenced only to seek redress for a violation for which the employee has completed both counseling and mediation. 2 U.S.C. § 1408(a). II. Claims of Plaintiff Thompson The defendant moves for dismissal of Thompson’s claims on two grounds. First, the defendant argues that Thompson is precluded from relitigating the issue of the Court’s jurisdiction over his claims because the court in Thompson I previously" }, { "docid": "9864324", "title": "", "text": "an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”). That said, even if the Court were to proceed' to the merits of plaintiffs retaliation claim, defendant’s motion for summary judgment on this claim would still be granted. Under the CAA, it is-“unlawful for an employing office to intimidate, take reprisal against, or otherwise discriminate against, any covered employee because the covered employee has opposed any practice made unlawful by [the CAA,] or because the covered employee has initiated proceedings, made a charge, or testified, assisted, or participated in any manner in a hearing or other proceeding under [the CAA.]” 2 U.S.C. § 1317. These claims are analyzed under the same rubric as Title VII retaliation claims. See Newton v. Office of the Architect of the Capitol, 905 F.Supp.2d 88, 92 (D.D.C.2012). In order to make out a prima facie case, a plaintiff must establish that “(1) that he engaged in a statutorily protected activity; (2) that he suffered a materially adverse action by his employer,” Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009); and (3) that “his ... protected activity was a but-for cause of the ... adverse action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S.-, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). According to his amended complaint and his opposition, plaintiff did not engage in any “protected activity” until September 2011 when he first met with his supervisors and complained that he “was being [treated] differently from [white officers] who were similarly situated.” (Amend.ComplV 28). In October 2011, he “met Captain Herle in the hallway and told him that he felt he was being discriminated against based on his race and would be filing a complaint to vindicate his rights.” (Id. at ¶ 29.) Then, in February 2012, he filed a formal discrimination complaint with the USCP’s Office of Compliance. (Id. at ¶ 33.) A majority of the alleged • adverse actions pre-date this protected activity and therefore cannot form the basis of a retaliation claim. See Booth v. Dist. of Columbia., 701 F.Supp.2d" }, { "docid": "10682270", "title": "", "text": "to offices in the Legislative Branch as a result of the Congressional Accountability Act” and analyzing CAA discrimination and hostile work environment claims as Title VII claims); Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 15 (D.C.Cir.2006) (presuming that Title VII principles apply to retaliation under the CAA); Moran v. U.S. Capitol Police Bd., 887 F.Supp.2d 23, 30 (D.D.C.2012) (“Although the CAA contains its own retaliation provision, courts refer to the body of case law regarding discrimination under Title VII to evaluate claims of retaliation under the CAA.”); Herbert v. Office of the Architect of the Capitol, 839 F.Supp.2d 284, 291 n. 2 (D.D.C.2012) (noting that discrimination and retaliation “[cjlaims brought under the CAA are analyzed under Title VIPs familiar framework and standards____Although the CAA includes its own anti-retaliation provision ... courts routinely rely upon Title VII case law when evaluating whether a challenged employment action is sufficiently adverse under the CAA’s anti-retaliation provision.”); Hollabaugh v. Office of the Architect of the Capitol, 847 F.Supp.2d 57, 66 (D.D.C.2012) (“Claims arising under Section 1317 are analyzed under the framework and standards governing Title VII’s anti-retaliation provision.”). Even setting aside the weight of precedent, Ms. Newton’s argument also fails as a matter of statutory interpretation. First, the CAA provisions incorporating Title VII and prohibiting retaliatory conduct do so without reserving any deference to the decisions of the Board. See 2 U.S.C. §§ 1302, 1311 & 1317. Second, the statute suggests judicial, not Board, primacy by providing that courts, rather than the Board, shall (if necessary) have the final word on all complaints. An aggrieved employee may, after completing the counseling and mediation steps, choose to bring a complaint either administratively through the Office of Compliance, or in U.S. District Court, see § 1404, but administrative decisions are ultimately appeal-able to the Federal Circuit. § 1407(a)(1). Even within the administrative review process, the statute expressly endorses judicial primacy; hearing officers in those cases are to be “guided by judicial decisions under the laws made applicable by section 1302 of this title [i.e. Title VII] and by Board decisions under this chapter”—" }, { "docid": "10368371", "title": "", "text": "v. Howlett, 562 F.Supp. 849, 851 (D.D.C.1983), aff'd, 735 F.2d 1497 (D.C.Cir.1984). Because this Court has no jurisdiction, it must grant defendants’ motion to dismiss plaintiffs’ unfair labor practice claims brought under the FSLMRA. Plaintiff also alleges that the Library violated her due process rights by failing to make certain reports available to her in a timely fashion. In cases where constitutional and statutory violations are inextricably linked, however, and Congress has created a remedial structure for the latter, the congressional scheme precludes the district courts from taking jurisdiction. See Steadman v. Governor, United States Soldiers’ and Airmen’s Home, 918 F.2d at 967 (citing Wallace v. Lynn, 507 F.2d 1186, 1189-90 (D.C.Cir.1974)). The Court therefore also grants defendants’ motion to dismiss plaintiffs due process claim. B. Discrimination Claims: Jurisdiction and Exhaustion The core of plaintiffs complaint in this Court involves claims of national origin and gender discrimination, sexual harassment including hostile work environment, and retaliation. For these claims, plaintiff invokes both the Congressional Accountability Act, 2 U.S.C. § 1301 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The purpose of the CAA is to make the guarantees of Title VII of the Civil Rights Act of 1964, among other enumerated laws, applicable to the Legislative Branch. See 2 U.S.C. § 1302. While the Library is technically an arm of Congress, see 2 U.S.C. § 171 (Congress establishes for itself a library), the CAA’s protection does not extend to Library employees. See 2 U.S.C. § 1301(3) (providing that the CAA applies to any employees or applicants for employment in nine specific legislative offices, of which the Library of Congress is not one). Rather, Title VII applies to the Library by its own terms. See 42 U.S.C. § 2000e-16(a) (“All personnel actions affecting employees or applicants for employment ... in ... the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.”). Plaintiffs claims based on the CAA therefore will be dismissed for lack of subject matter jurisdiction. With respect to the majority" }, { "docid": "20166475", "title": "", "text": "Because the plaintiff has failed to respond to the defendant's arguments regarding her retaliation claim, the Court considers the arguments to be conceded, and thus, to the extent the retaliation claim survived the previous motion, it is now dismissed. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (Walton, J.), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004); see also Local Rule 7(b) (\"If [an opposition] memorandum is not filed within the prescribed time, the Court may treat the motion as conceded.”). . While the Accountability Act “establishes its own comprehensive administrative regime — • including jurisdictional provisions,” Blackmon-Malloy, 575 F.3d at 706, courts often find case law interpreting the other statutes incorporated by the Accountability Act to be persuasive. See, e.g., Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 53 n. 5 (D.D.C.2004). . The plaintiff suggests that a third method, the doctrine of equitable tolling, should be used. See PL’s Mem. at 18-20. Flowever, as the Court noted in its earlier opinion, this Circuit has rejected the application of equitable doctrines to claims brought under the Accountability Act. See Blackmon-Malloy, 575 F.3d at 702 (\"We hold the three-step process [for exhausting administrative remedies under the Accountability Act] is jurisdictional and thus affirm the district court ruling that equitable doctrines, such as vicarious exhaustion, do not apply to excuse compliance with it.”). The Supreme Court cases cited by the plaintiff to challenge this holding involve claims brought under Title VII of the Civil Rights Act of 1964 rather than the Accountability Act; as noted above, the Act creates its own jurisdictional provisions. See id. at 706. . The defendant erroneously states that the Court previously held that \"the clock starts to run when the complainant knows or should have known that the challenged act has occurred.” Def.’s Mem. at 13. The Court, after discussing both the notification rule and the federal discovery rule, held that the plaintiff’s claim was timely under either rule. Gordon, 750 F.Supp.2d at 92. . It is unclear whether analysis under the discovery rule would, as a practical matter, render a" }, { "docid": "18204099", "title": "", "text": "provision. 2 U.S.C. § 1317(a). Claims arising under that provision are analyzed under the familiar framework and standards governing Title VII’s anti-retaliation provision. See, e.g., Timmons v. U.S. Capitol Police Bd., 407 F.Supp.2d 8, 11 (D.D.C.2005); Bolden v. Office of Architect of Capitol, No. 01 Civ. 251(CKK), 2005 WL 607875, at *4-5 (D.D.C. Mar. 15, 2005); Trawick v. Hantman 151 F.Supp.2d 54, 62-63 (D.D.C.2001), aff'd, No. 01-5309, 2002 WL 449777 (D.C.Cir. Feb. 21, 2002). Indeed, courts routinely rely upon Title VII case law when evaluating whether a challenged employment action is sufficiently adverse under the CAA’s anti-retaliation provision. See, e.g., Clark v. Hantman, No. 02-5313, 2003 WL 21018860, at *1 (D.C.Cir. Apr. 29, 2003) (per curiam); Vanover v. Architect of Capitol, No. 01-5352, 2002 WL 31027573, at *1 (D.C.Cir. Sept. II, 2002) (per curiam). . Highlighting that Herbert engaged in arguably protected activity subsequent to the issuance of the letter of reprimand, the AOC argues that Herbert was not, in fact, dissuaded from making or supporting a charge of discrimination. However, the standard of “material adversity” is an objective one, an eminently sensible rule designed to \"avoid[] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings.” Burlington, 548 U.S. at 68-69, 126 S.Ct. 2405. . The letter of reprimand incorporates the facts set forth in prior correspondence between the AOC and Herbert concerning the proposed reprimand, which included descriptions of the basic contours of the events that transpired and a quotation of a single statement attributed to Herbert. Def.’s Stmt. Exs. 12, 14. . The parties dedicate an extraordinary amount of attention to the question of whether letters of reprimand are per se actionable or non-actionable. Their attention is misplaced; the case law is clear that the “material adversity” inquiry is necessarily context-specific and “is simply not reducible to a comprehensive set of clear rules.” Thompson, 131 S.Ct. at 868. That said, the Court observes that a number of courts in this district have found an employer’s action to be insufficiently adverse when presented with similar facts. See Reshard v. Lahood," }, { "docid": "14929972", "title": "", "text": "the termination decision was [Ms. Singh’s] poor reputation and unsatisfactory job performance. Winters had worked with [Ms. Singh] and indicated that [she] did not have a good professional reputation, that she had limited substantive experience, and that she had problems getting along with others. I was also informed that several individuals complained about [Ms. Singh’s] performance. These were the factors I had in my mind when I concurred in the decision to terminate [Ms. Singh’s] employment. Id. ¶¶ 12-14; see also Def.’s Mot. Exh. 11 (Giles Aff.). At the time Ms. Giles and Mr. Kelliher reached these personnel decisions, each had been working for the Committee for only about two weeks. See id. ¶ 12. Ms. Singh was officially discharged from her position on the Subcommittee on February 12, 2001. B. Statutory Framework Once immune from suit for employment-related claims, Congress adopted the CAA to put itself voluntarily under the jurisdiction of the federal courts to resolve employment discrimination (and other) disputes if an administrative resolution process, which includes counseling and mediation, fails. The CAA incorporates parts of Title VII and requires that “[a]ll personnel actions affecting covered employees shall be made free from any discrimination based on ... race, color, religion, sex, or national originf.]” Id. § 1311(a). Due to the inherent political nature of Capitol Hill, the CAA specifically allows an employing office to consider an employee’s party affiliation, domicile, or political, compatibility in making employment-related decisions. 2 U.S.C. § 1432(a). It is uncontested that the CAA applies to Ms. Singh as a “covered employee” in the legislative branch. . 2 U.S.C- §§ 1301(3)(A), 1301(9)(B). Moreover, she appears to have fulfilled her statutory obligation to exhaust administrative remedies prior to filing suit on March 18, 2002. Remedies under the CAA include, as appropriate, back pay, reinstatement, and compensatory — but not punitive — damages. 2 U.S.C. §§ 1311(b)(1)(A) and (B). II. STANDARD OF REVIEW Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c);" }, { "docid": "10682271", "title": "", "text": "are analyzed under the framework and standards governing Title VII’s anti-retaliation provision.”). Even setting aside the weight of precedent, Ms. Newton’s argument also fails as a matter of statutory interpretation. First, the CAA provisions incorporating Title VII and prohibiting retaliatory conduct do so without reserving any deference to the decisions of the Board. See 2 U.S.C. §§ 1302, 1311 & 1317. Second, the statute suggests judicial, not Board, primacy by providing that courts, rather than the Board, shall (if necessary) have the final word on all complaints. An aggrieved employee may, after completing the counseling and mediation steps, choose to bring a complaint either administratively through the Office of Compliance, or in U.S. District Court, see § 1404, but administrative decisions are ultimately appeal-able to the Federal Circuit. § 1407(a)(1). Even within the administrative review process, the statute expressly endorses judicial primacy; hearing officers in those cases are to be “guided by judicial decisions under the laws made applicable by section 1302 of this title [i.e. Title VII] and by Board decisions under this chapter”— Board decisions which are themselves ultimately subject to judicial review. See 2 U.S.C. §§ 1302 & 1407(a)(1) (emphasis added). Third, the CAA does not give the Board any power to issue regulations defining the substance of employees’ Title VII and retaliation based claims; while the Board may promulgate regulations to implement other incorporated statutes, such as the Family and Medical Leave Act, See § 1312(d), and the Fair Labor Standards Act, see § 1312(b), there is no equivalent provision authorizing such regulations under Title VII. Accordingly, this Court will not look to Office of Compliance Board rulings to decide whether Ms. Newton’s CAA retaliation and hostile work environment claims survive this Motion to Dismiss, but will instead rely on the CAA, caselaw interpreting that statute, and caselaw interpreting Title VII. B. Retaliation Claims CAA retaliation claims under 2 U.S.C. § 1317 are analyzed under the same standards as Title VII retaliation claims. See Herbert, 839 F.Supp.2d at 291 n. 2. Thus, to state a prima facie case, Newton must plausibly allege that “(1) [she] engaged" }, { "docid": "2913544", "title": "", "text": "she has not plausibly alleged facts indicating that the close-out performance evaluation hindered her professional opportunities. Nor has she explained how, given the nature of close-out evaluations as set forth in the relevant USCP policies, either of these things could have occurred. Accordingly, because plaintiff has not alleged facts supporting a claim that she suffered a materially adverse action — i.e., one that might have dissuaded a reasonable worker from making or supporting a charge of discrimination — her retaliation claims fail as well. See, e.g. Taylor v. Solis, 571 F.3d 1313, 1321 (D.C.Cir.2009) (finding the lowering of employee’s performance evaluation from “Outstanding” to “Excellent” to “Fully Effective” not materially adverse because downgrades were not attached to financial harms despite plaintiffs conclusory allegation that she was denied promotional and bonus opportunities); Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.Cir.2008) (finding that a performance rating of “not achieved” was not materially adverse because plaintiff failed to produce evidence that the rating could affect his position, grade, level, salary, or promotion opportunities). B. Plaintiffs Hostile Work Environment Claims Plaintiff claims that she was subjected to a hostile work environment, based on her gender, and in retaliation for complaining about her discriminatory treatment. See Am. Compl. Counts IX & X. The USCP principally argues that these claims are untimely. For the reasons set forth below, the Court agrees and dismisses the gender-based claim as untimely. But the retaliatory hostile work environment claim fails because it does not allege severe or pervasive harassment. 1. Statutory Framework for Exhaustion of Administrative Remedies The plaintiff brings her claims pursuant to the Congressional Accountability Act. Am. Compl. ¶¶ 1-6. Through the CAA, “Congress extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch.” Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, 701 (D.C.Cir.2009). “In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief.” Id. To “commence a proceeding,” an employee must request counseling" }, { "docid": "10682280", "title": "", "text": "administrative decision to the Office of Compliance Board, and then to the Federal Circuit. § 1407(a). The D.C. Circuit explained that the CAA extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch. In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief. However, rather than use the pre-complaint regimes in place for other federal employees, Congress created an Office of Compliance and vested it with broad responsibility for counseling and mediation and adoption of rules of procedure. Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 701 (D.C.Cir.2009). . The contrast here is between the substance or merits of the discrimination or retaliation claim, which the CAA borrows from Title VII, with jurisdictional counseling and mediation requirements, which are specific to the CAA. See Blackmon-Malloy, 575 F.3d at 706. . Moreover, as defendants point out, the Office of Compliance’s own manual states that the Board “has not adopted regulations on Title VII rights and protections. However, employing offices and covered employees may find it helpful to refer to court decisions interpreting Title VII.” See Def. Ex. 1 at 2-A-l. . Nothing here should be taken as suggesting that this would make any difference for Ms. Newton's case." }, { "docid": "13603553", "title": "", "text": "358 (D.C.Cir.2013) (citation omitted). Nevertheless, despite the fact that “summary judgment must be approached with specific caution in discrimination cases, a plaintiff is not relieved of his obligation to support his allegations” with competent evidence showing a genuine issue for trial. Walker, 590 F.Supp.2d at 132-33 (quoting Morgan v. Fed. Home Loan. Mortg. Corp., 172 F.Supp.2d 98, 104 (D.D.C.2001)); see also Marshall v. James, 276 F.Supp.2d 41, 47 (D.D.C.2003) (noting that, even though courts must proceed with caution, summary judgment is still used in discrimination cases). III. ANALYSIS Raymond contends that Thomas had long discriminated against him on the ba sis of national origin and age and that, given Thomas’s presence on the promotion selection panel, a reasonable jury could infer that the AOC discriminated against him in selecting Shields over him for the promotion. (See Compl. ¶¶ 21, 23-26; Pl.’s Opp’n at 3.) Defendant has advanced a non-discriminatory reason for the selection—ie., that Shields was simply more qualified than Raymond—and contends that there is no genuine issue of material fact regarding whether this rationale was pretext for discrimination. As explained below, this Court concludes that the Raymond has failed to establish that the AOC’s proffered reason for the non-selection was pretext given the record evidence of Shields’s superior qualifications and the fact that each panelist independently arrived at the conclusion that Shields was the better man for the job. A. Applicable Legal Standards For Establishing Discrimination Raymond maintains that the non-selection at issue here constituted discrimination in violation of Title VII and the ADEA. (Compl. ¶ 1.) As an AOC employee, Raymond can only bring such claims under the CAA, which was enacted in 1995 to provide a forum for employees of the legislative branch of the federal government to challenge their employers’ alleged discriminatory actions. See 2 U.S.C. § 1301(3). The CAA makes certain federal anti-discrimination statutes expressly applicable to legislative branch offices, including, in relevant part, Title VII and the ADEA. 2 U.S.C. § 1302(a). When construing discrimination claims under the CAA, courts incorporate much of the substantive law of Title VII. See Blackmon-Malloy v. U.S. Capitol" }, { "docid": "10682279", "title": "", "text": "cites an August 2011 letter of counseling, see Compl. ¶ 35. However, OAC pointed out that there was no written record of such a letter. See Def.’s Br. at 3 n. 2. In her opposition brief, Ms. Newton continues to assert that she received such a letter, Pl.’s Opp'n at 9, but in her declaration filed with that brief, she actually acknowledges that she received no such letter. See Pl.’s Opp’n to Def.’s Statement of Material Facts Not in Dispute at 8, Oct. 10, 2012, ECF No. 13. Accordingly, the Court takes this assertion as withdrawn and will not address it further. . The Office of Compliance is the administrative body charged, among other responsibilities, with hearing complaints brought by Congressional employees under the various federal statutes made applicable to Congressional employers under the CAA. After completing the first two preliminary steps — counseling and mediation — an employee may elect to pursue his complaint either in federal court or administratively through the Office of Compliance. 2 U.S.C. § 1404. The employee may appeal an administrative decision to the Office of Compliance Board, and then to the Federal Circuit. § 1407(a). The D.C. Circuit explained that the CAA extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch. In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief. However, rather than use the pre-complaint regimes in place for other federal employees, Congress created an Office of Compliance and vested it with broad responsibility for counseling and mediation and adoption of rules of procedure. Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 701 (D.C.Cir.2009). . The contrast here is between the substance or merits of the discrimination or retaliation claim, which the CAA borrows from Title VII, with jurisdictional counseling and mediation requirements, which are specific to the CAA. See Blackmon-Malloy, 575 F.3d at 706. . Moreover, as defendants point out, the Office of Compliance’s own manual states" }, { "docid": "2913545", "title": "", "text": "Claims Plaintiff claims that she was subjected to a hostile work environment, based on her gender, and in retaliation for complaining about her discriminatory treatment. See Am. Compl. Counts IX & X. The USCP principally argues that these claims are untimely. For the reasons set forth below, the Court agrees and dismisses the gender-based claim as untimely. But the retaliatory hostile work environment claim fails because it does not allege severe or pervasive harassment. 1. Statutory Framework for Exhaustion of Administrative Remedies The plaintiff brings her claims pursuant to the Congressional Accountability Act. Am. Compl. ¶¶ 1-6. Through the CAA, “Congress extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch.” Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, 701 (D.C.Cir.2009). “In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief.” Id. To “commence a proceeding,” an employee must request counseling within 180 days of the date of the alleged violation of law. 2 U.S.C. § 1402(a); Blackmon-Malloy, 575 F.3d at 702. Because the relevant CAA provisions provide “that a district court has ‘jurisdiction over [appropriate actions] commenced ... by a covered employee who has completed counseling ... and mediation’ ” and a “civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation,” the D.C. Circuit has held that the CAA’s administrative exhaustion requirement is jurisdictional. Id. at 705-706; accord Gordon v. Office of the Architect of the Capitol, 928 F.Supp.2d 196, n. 6 (D.D.C.2013); Bradshaw v. Office of the Architect of the Capitol, 856 F.Supp.2d 126, 135 (D.D.C.2012). The Supreme Court’s opinion in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), requires that a plaintiff file a charge for each separate discrete act of discrimination within the required period of time. As set forth above, in the case of claims under the" }, { "docid": "13603555", "title": "", "text": "Police Bd., 575 F.3d 699, 706 (D.C.Cir.2009); see also Hyson v. Architect of the Capitol, 802 F.Supp.2d 84, 97 (D.D.C.2011) (citations omitted); Gordon v. Office of the Architect of the Capitol, 750 F.Supp.2d 82, 90 (D.D.C.2010) (“Although not necessarily binding precedent, courts when construing the CAA often consider as persuasive case law interpreting Title VII.” (citation omitted)). In cases that involve allegations of national origin or age discrimination, courts in this jurisdiction typically apply the familiar burden-allocation scheme that the Supreme Court adopted in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See id. at 802-03, 93 S.Ct. 1817; see also Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C.Cir.2003) (applying McDonnell Douglas to Title VII discrimination claims); Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984) (applying McDonnell Douglas to ADEA discrimination claims). Pursuant to this scheme, a plaintiff must first demonstrate by a preponderance of evidence the existence of a prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the plaintiff is able to establish a prima facie case, then the burden shifts to the defendant to offer a nondiscriminatory reason for the challenged determina tion. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. And once such reason is offered, the burden shifts back to the plaintiff to demonstrate that the employer’s reason was actually pretext for discrimination. See id. at 804, 93 S.Ct. 1817. Significantly, the D.C. Circuit has clarified that an analysis of the first step in the McDonnell Douglas framework—assessment of the prima facie factors—is “almost always irrelevant” and is “largely [an] unnecessary sideshow.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 492, 494 (D.C.Cir.2008). Thus, where, as here, the defendant employer has asserted a legitimate, non-discriminatory reason for an employment decision, there is “one central question” that the district court must resolve: whether the employee has produced “sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason" }, { "docid": "13603554", "title": "", "text": "was pretext for discrimination. As explained below, this Court concludes that the Raymond has failed to establish that the AOC’s proffered reason for the non-selection was pretext given the record evidence of Shields’s superior qualifications and the fact that each panelist independently arrived at the conclusion that Shields was the better man for the job. A. Applicable Legal Standards For Establishing Discrimination Raymond maintains that the non-selection at issue here constituted discrimination in violation of Title VII and the ADEA. (Compl. ¶ 1.) As an AOC employee, Raymond can only bring such claims under the CAA, which was enacted in 1995 to provide a forum for employees of the legislative branch of the federal government to challenge their employers’ alleged discriminatory actions. See 2 U.S.C. § 1301(3). The CAA makes certain federal anti-discrimination statutes expressly applicable to legislative branch offices, including, in relevant part, Title VII and the ADEA. 2 U.S.C. § 1302(a). When construing discrimination claims under the CAA, courts incorporate much of the substantive law of Title VII. See Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 706 (D.C.Cir.2009); see also Hyson v. Architect of the Capitol, 802 F.Supp.2d 84, 97 (D.D.C.2011) (citations omitted); Gordon v. Office of the Architect of the Capitol, 750 F.Supp.2d 82, 90 (D.D.C.2010) (“Although not necessarily binding precedent, courts when construing the CAA often consider as persuasive case law interpreting Title VII.” (citation omitted)). In cases that involve allegations of national origin or age discrimination, courts in this jurisdiction typically apply the familiar burden-allocation scheme that the Supreme Court adopted in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See id. at 802-03, 93 S.Ct. 1817; see also Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C.Cir.2003) (applying McDonnell Douglas to Title VII discrimination claims); Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984) (applying McDonnell Douglas to ADEA discrimination claims). Pursuant to this scheme, a plaintiff must first demonstrate by a preponderance of evidence the existence of a prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248," }, { "docid": "10682272", "title": "", "text": "Board decisions which are themselves ultimately subject to judicial review. See 2 U.S.C. §§ 1302 & 1407(a)(1) (emphasis added). Third, the CAA does not give the Board any power to issue regulations defining the substance of employees’ Title VII and retaliation based claims; while the Board may promulgate regulations to implement other incorporated statutes, such as the Family and Medical Leave Act, See § 1312(d), and the Fair Labor Standards Act, see § 1312(b), there is no equivalent provision authorizing such regulations under Title VII. Accordingly, this Court will not look to Office of Compliance Board rulings to decide whether Ms. Newton’s CAA retaliation and hostile work environment claims survive this Motion to Dismiss, but will instead rely on the CAA, caselaw interpreting that statute, and caselaw interpreting Title VII. B. Retaliation Claims CAA retaliation claims under 2 U.S.C. § 1317 are analyzed under the same standards as Title VII retaliation claims. See Herbert, 839 F.Supp.2d at 291 n. 2. Thus, to state a prima facie case, Newton must plausibly allege that “(1) [she] engaged in statutorily protected activity; (2) [she] suffered a materially adverse action by her employer; and (3) that a causal link connects to two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). A “materially adverse” action is a “significant change in employment status.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009). An action only qualifies as “materially adverse” if it could conceivably dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (distinguishing between “purely subjective injuries” which are not actionable, and “objectively tangible harm,” which is). Under these standards, “not everything that makes an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001). In Baloch v. Kempthorne, 550 F.3d 1191, 1199 (2008), the D.C. Circuit held that an employer issuing “a letter of counseling, letter of reprimand, and unsatisfactory performance review” containing “job-related constructive criticism” could not" } ]

[ { "docid": "6443765", "title": "", "text": "speak on the question. Today, we join with the majority of circuits which have considered the question and hold that Zahn has been overruled. We note that the majority of courts have been reaching this same conclusion for almost ten years now and Congress has yet to alter or amend § 1367 to correct them. For almost ten years, courts have acknowledged that the text of § 1367 unambiguously overrules Zahn, while its legislative history shows a clear intent to preserve Zahn. Rules of statutory construction teach that generally a court cannot consider the legislative history of a statute in interpreting its meaning unless the statute is ambiguous. See In re Comshare Inc. Sec. Litig., 183 F.3d 542, 549 (6th Cir.1999) (“When interpreting a statute, we must begin with its plain language, and may resort to a review of congressional intent or legislative history only when the language of the statute is not clear.”) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 n. 10 (6th Cir.1997) (“We have not referred to legislative history in our discussion of this issue because, where the statutory meaning is clear, we do not resort to legislative history.”). This tension has created a strong incentive to interpret what we believe to be unambiguous as ambiguous, in order to open the door to the legislative history. See, e.g., Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930) (“Courts have sometimes exercised a high degree of ingenuity in the effort to find justification for wrenching from the words of a statute a meaning which literally they did not bear in order to escape consequences thought to be absurd or to entail great hardship.”). For instance, Judge Tjoflat, in his recent dissent from the denial of rehearing en banc in Allapattah, considered Leonhardt’s alternative interpretation of § 1367 and noted that it is “arguably an absurd interpretation of the statute because it would permit courts to exercise supplemental jurisdiction only in" } ]

[ { "docid": "4656488", "title": "", "text": "the drafters’ intent. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 2186-2187, 45 L.Ed.2d 319 (1975). Likewise, resort may be had to the several principles and maxims of statutory construction. See, e.g., National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). Such principles and maxims are guides to determining legislative intent, and must yield in the face of clear contrary evidence of legislative intent. Id. It is abundantly clear, from the legislative history, that the drafters of 11 U.S.C. § 547(c)(1) did not design it to cover such a situation as is presented under the facts of this proceeding. This subsection was designed to fit in the situation of a contemporaneous exchange of cash or the equivalent of cash by the debtor for something of value, e.g., the situation where the debtor acquires new property and pays for it at or about the same time, with cash or the equivalent of cash. See H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 373 (1977); Levin, Introduction to Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 186 (1979). The legislative history states at H.R.Rep.No.95-595, U.S.Code Cong. & Admin.News, 1978, p. 6329: The first exception is for a transfer that was intended by all parties to be a contemporaneous exchange for new value, and was in fact substantially contemporaneous. Normally, a check is a credit transaction. However, for the purposes of the paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” From this it is clear that the intent of the drafters was that the only type of credit transaction which would result in a transfer under this exception would be a transaction by which a payment is made by check, which, as is noted, is for all practical intents and purposes really a cash transaction. \\ Plainly, the drafters meant for" }, { "docid": "22215324", "title": "", "text": "to rewrite a statute because they might deem its effects susceptible of improvement.”); Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971) (“it is for Congress, not this Court, to rewrite the statute”); Korman v. HBC Florida, Inc., 182 F.3d 1291, 1296 (11th Cir.1999) (“It is not the business of courts to rewrite statutes.”). B. The Congressional History When the import of the words Congress has used is clear, as it is here, we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language. See United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) (“Given the straightforward statutory command, there is no reason to resort to legislative history.”); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994) (“There are, we recognize, contrary indications in the statute’s legislative history. But we do not resort to legislative history to cloud a statutory text that is clear.”); Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 1391, 118 L.Ed.2d 39(1992) (“To begin, we note that appeals to statu tory history are well taken only to resolve statutory ambiguity.”); United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) (“Where the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said.”). Notwithstanding that well-recognized and bedrock principle, sometimes judges who find that legislative history supports and complements the plain meaning of statutory language cannot resist the temptation to set out that history. We have given in to that temptation more than once. See, e.g., United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.1999) (“Given the plain meaning of the statutory language, we could bypass any consideration of legislative history. Nevertheless, for the sake of completeness, and because this is our first occasion to decide a Hyde Amendment case, we will look at" }, { "docid": "22704560", "title": "", "text": "petitioner had received no interest in debtor’s property, not that his interest was “conditional.” Finally, we note that our conclusion that no transfer of property occurs until the time of honor is consistent with § 547(e)(2)(A). That section provides that a transfer occurs at the time the transfer “takes effect between the transferor and the transferee . . . .” For the reasons given above, and in particular because the debtor in this case retained the ability to stop payment on the check until the very last, we do not think that the transfer of funds in this case can be said to have “taken effect between the debtor and petitioner” until the moment of honor. Recognizing, perhaps, the difficulties in his position, petitioner places his heaviest reliance not on the statutory language but on accompanying legislative history. Specifically, he points to identicál statements from Representative Edwards and Senator DeConcini that “payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2).” 124 Cong. Rec. 32400 (1978); id., at 34000. We think this appeal to legislative history unavailing. To begin, we note that appeals to statutory history are well taken only to resolve “statutory ambiguity.” Toibb v. Radloff, 501 U. S. 157, 162 (1991). We do not think this is such a case. But even if it were, the statements on which petitioner relies, by their own terms, apply only to § 547(c), not to § 547(b). Section 547(c), in turn, establishes various exceptions to § 547(b)’s general rule permitting recovery of preferential transfers. Subsection (c)(1) provides an exception for transfers that are part of a contemporaneous exchange of new value between a debtor and creditor; subsection (c)(2) provides an exception for transfers made from debtor to creditor in the ordinary course of business. These sections are designed to encourage creditors to continue to deal with troubled debtors on normal business terms by obviating any worry that a subsequent bankruptcy filing might require" }, { "docid": "22762874", "title": "", "text": "cases, led by the Second Circuit in which the “strong inference” standard originated, have held that allegations of recklessness or motive and opportunity are sufficient to satisfy the “strong inference” standard. See In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534-35 (3d Cir.1999); Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 537-38 (2d Cir.1999). The latter approach begins and ends with the plain text of the statute. The statute nowhere mentions proof of motive and opportunity to commit fraud or any other specific means of establishing scien-ter, but simply requires that plaintiffs “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). There is no support in the text for concluding that proof of recklessness or motive and opportunity to commit fraud are not sufficient to meet the “strong inference” standard. The majority concedes as much, but nonetheless resorts to legislative history because the language of the statute “does not indicate whether [allegations of recklessness or motive and opportunity] alone are enough to establish a ‘strong inference’ of [scienter].” Ante, at 977. In effect, the majority holds that the breadth and flexibility of the Reform Act’s unambiguous pleading standard are sufficient to justify departure from the statute’s plain text. Respectfully, that thesis is not supportable. As the Court stated in Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992), “[Ajppeals to statutory history are well taken only to resolve ‘statutory ambiguity.’” See also Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 1956, 141 L.Ed.2d 215 (1998) (“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” (internal quotations omitted)). Even if it were appropriate to reach beyond the plain text, the Reform Act’s legislative history does not support the majority’s interpretation. Although Congress clearly intended to adopt the Second Circuit’s “strong inference” standard, the legislative history taken as a whole does not suggest that Congress intended to reject the Second Circuit’s holdings that" }, { "docid": "7406692", "title": "", "text": "Local Union No. 474 v. NLRB, 814 F.2d 697, 712 (D.C.Cir.1987)). Consequently, if a statute is plain and unequivocal on its face, there is no need to resort to the legislative history underlying the statute. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (citing Ratzlaf v. United States, 510 U.S. 135, 147-148, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”)). Courts may look to “congressional clues” including “prefatory provisions.” See General Dynamics Land Systems, Inc. v. Cline, — U.S. -, 124 S.Ct. 1236,1242-44, 157 L.Ed.2d 1094 (2004). In addition, there are select instances when resort to legislative history may be permissible. For example, a court may consider legislative history if: the plain meaning produces a result that is not just “harsh,” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982), “curious,” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 172, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978), or even “stark and troubling,” Estate of Cowart, 505 U.S. at [483], 112 S.Ct. at 259[8], but “so bizarre that Congress ‘could not have intended’ it,” Demarest v. Manspeaker, 498 U.S. 184, 186, 190-91, 111 S.Ct. 599, 601-02, 603-04, 112 L.Ed.2d 608 (1991). Weddel v. Sec’y of Dep’t of Health and Human Servs., 23 F.3d at 391. Legislative history may be introduced into the analysis to resolve an ambiguous statute. Ratzlaf v. United States, 510 U.S. at 148 n. 18, 114 S.Ct. 655 (citing Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)); Patterson v. Shumate, 504 U.S. 753, 761, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). Regarding the citrus canker compensation program included in section 810 of the appropriations act at issue, no relevant legislative history has been identified. For assistance in interpreting appropriations statutes, courts, including the United States Court of Appeals for the Federal Circuit, (see, e.g., Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1084 (Fed.Cir.2003)), consult a well-recognized appropriations" }, { "docid": "15288169", "title": "", "text": "presumed to have used no superfluous words.”). Nor can the rewriting of the plain meaning of the words “substantially contemporaneous” in § 547(c)(1)(B) be justified on the basis of intent revealed in the legislative history of the provision. The primary reason is that courts must not resort to legislative history to cloud the meaning of statutory text that is plain. Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994); see Darby v. Cisneros, 509 U.S. 137, 147, 113 S.Ct. 2539, 2545, 125 L.Ed.2d 113 (1993) (“Recourse to the legislative history of [the statute at issue] is unnecessary in light of the plain meaning of the statutory text.”); Ins. Co. v. Ritchie, 72 U.S. 541, (5 Wall.) 541, 545 (1867) (“[W]hen terms are unambiguous we may not speculate on probabilities of intention.”); Harris, 216 F.3d at 976 (“When the import of the words Congress has used is clear ... we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.”). In addition, even if we could resort to legislative history in construing the meaning of “substantially contemporaneous” in § 547(c)(1)(B), it would only reinforce the plain meaning of that term. The House Committee Report contained this commentary on the provision at issue: The first exception [(§ 547(c)(1))] is for a transfer that was intended by all parties to be a contemporaneous exchange for new value, and was in fact substantially contemporaneous. Normally, a check is a credit transaction. However, for the purposes of this paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” H.R.Rep. No. 95-595, at 373 (1977), as reprinted in 1978 U.S.C.C.A.N. 5787, 6329. Using payment of a check “in the normal course of affairs” as an example of a “substantially contemporaneous” exchange is antithetical to the" }, { "docid": "4232867", "title": "", "text": "whether Congress has spoken on the subject before us. If the intent of Congress is clear, that is the end of the matter; for the court . must give effect to the unambiguously expressed intent of Congress. Norfolk & Western Ry. Co. v. American Train Dispatchers' Ass'n, 499 U.S. 117, 128, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991) (quotations omitted); see also Negonsott v. Samuels, 507 U.S. 99, 104, 113 S.Ct. 1119, 1122-23, 122 L.Ed.2d 457 (1993) (\"Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.\") (quotations omitted); Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 1391, 113 L.Ed.2d 39 (1992) (\"appeals to statutory history are well-taken only to resolve statutory ambiguity\") (quotations omitted); West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 98-99, 111 S.Ct. 1138, 1146-47, 113 L.Ed.2d 68 (1991) (\"The best evidence of [statutory] purpose is the statutory text adopted by both Houses of Congress and submitted to the President. Where that [statutory text] contains a phrase that is unambiguous-that has a clearly accepted meaning in both legislative and judicial practice-we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.\"); Ar kansas AFL-CIO v. FCC, 11 F.3d 1430, 1440 (8th Cir.1993) (en bane) (\"If the intent of Congress is clear from the plain language of the statutory provision, that will be the end of the judicial inquiry.\"). This rule of statutory interpretation exists because `~when, as here, the statutes are straightforward and clear, legislative history and policy arguments are at best interesting, at worst distracting and misleading, and in neither case authoritative.\" Northern, States Power Co. v. United States, 73 F.3d 764, 766 (8th Cir.1996). We find no ambiguity in the Privacy Protection Act. See Brown v. Gardner, - U.S. -, - , 115 S.Ct. 552, 555, 130 L.Ed.2d 462 (1994) (\"Ambiguity is a creature not of definitional possibifities but of statutory context.\"). The Act presents a" }, { "docid": "23290329", "title": "", "text": "dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2). All the cases relied upon by the trustee which hold that the perfection of a transfer involving a check takes place when the check is honored reach this conclusion without considering the legislative statement now relied upon by the defendant. In re Garland, 19 B.R. 920, 929 (Bkrtcy.E.D. Mo.1982), reaches a contrary result based solely upon this statement. The courts that have ignored the September 28th and October 6th statement apparently did so on the theory that resort to legislative materials is irrelevant when a statute is clear and unambiguous. This theory clearly has no substance in light of the Supreme Court’s ruling in Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976). In that case, the court held that when aid to construction to the meaning of words, as used in the statute is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.” Thus, even though the statutory language is clear and unambiguous, the legislative history is not to be ignored, if it casts any light on the question before the court. Any inquiry to resolve this question must begin with a discussion of section 547(c)(1) and the House comment with respect to it, since that comment triggered the statement now in controversy. Section 547(c)(1) excepts from preference attack a transfer that the debtor and creditor intended to be a contemporaneous exchange for new value given to the debtor, and where the exchange was “in fact substantially contemporaneous.” Under the Bankruptcy Act, courts had held that when a cash sale was intended, the acceptance of a check instead of cash did not change the character of the transaction so long as the payee cashed the check within a reasonble time. Engstrom v. Wiley, 191 F.2d 684 (9th Cir.1951); Engelkes v. Farmers Co-operative Co., 194 F.Supp. 319 (N.D.Iowa 1961). The House Report made it clear that section 547(c)(1) was" }, { "docid": "19375408", "title": "", "text": "from available legislative materials which clearly reveal this intent. Where the literal language of the statute does not conclusively reveal legislative intent, the courts must look beyond literal meaning, analyzing the provision in context with the whole. Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374 (1974). Finally, a construction of one part or provision of a statute which renders another part redundant or superfluous should be rejected; all parts of a statute should, if possible, be given effect. Jarecki v. Searle & Co., 367 U.S. 303, 307-308, 81 S.Ct. 1579, 1582-1583, 6 L.Ed.2d 859 (1961). The legislative history of section 547(c)(1) is sparse. The Comment to the section provides in its entirety as follows: The first exception [§ 547(c)(1)] is for a transfer that was intended by all parties to be a contemporaneous exchange for new value, and was in fact substantially contemporaneous. Normally, a check is a credit transaction. However, for the purposes of this paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 373 (1977) [hereinafter cited as H.R. 595], U.S.Code Cong. & Admin.News 1978, pp. 5787, 6329. In enacting the “contemporaneous exchange” exception, Congress intended to codify decisions under the old bankruptcy act which had held that, when a cash sale was intended, acceptance of a check instead of cash did not change the character of the transaction, so long as the check was cashed within a reasonable period of time. See, e.g., Engstrom v. Wiley, 191 F.2d 684 (9th Cir.1951); Engelkes v. Farmers Co-operative Co., 194 F.Supp. 319 (N.D.Iowa 1961). Some have stated that the provision also codified Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419 (1917), which held that there was no preference where a loan was intended by both parties to be a secured" }, { "docid": "13638700", "title": "", "text": "766 (1980). A court should “assum[e] that the ordinary meaning of [the statutory] language accurately expresses the legislative purpose,” see Morales v. Trans World Airlines, Inc., — U.S. -, -, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992), and should “resort to the legislative history and other aids of statutory construction only when the literal words of the statute create ambiguity or lead to an unreasonable result.” United States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.1987) (citation and internal quotation marks omitted); accord Barnhill v. Johnson, — U.S. -, -, 112 S.Ct. 1386, 1391, 118 L.Ed.2d 39 (1992); Toibb v. Radloff, — U.S.-,-, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991). We discern no ambiguity here. In order to establish the existence of a right re-dressable under section 1983, a plaintiff must allege that a particular statute (or federal constitutional provision) imposes an obligation upon the State. See Wilder, 496 U.S. at 509-10, 110 S.Ct. at 2517-18; Pennhurst, 451 U.S. at 19, 101 S.Ct. at 1541; Playboy Enters., 906 F.2d at 32. This statute imposes none. Rather, it simply and forthrightly provides, in haec verba, that “the Secretary shall not approve any State plan for medical assistance” if the State has reduced AFDC payment levels below the level prevailing on May 1, 1988. 42 U.S.C. § 1396a(c)(l). By its express terms, section 1396a(c)(l) obliges the federal government, in the person of the Secretary of Health and Human Services — not the State — to take action. The statute could scarcely be clearer. Moreover, there is nothing unreasonable about Congress’s choosing to work its will in this way. States are not obligated by federal law to sponsor medical assistance plans or to accept federal funds for this purpose. See 42 U.S.C. § 1396 (1988); see also Wilder, 496 U.S. at 502, 110 S.Ct. at 2513. Thus, section 1396a(c)(l), without mentioning state officials at all, effectively gives them a choice: they may either maintain AFDC benefits at or above the May 1, 1988 payment levels, or they may reduce benefits. If they choose the former course — and" }, { "docid": "7169131", "title": "", "text": "appeal. But the argument does not stand up to scrutiny. There are two reasons. First — and most significant — even assuming that the statutory purpose may be characterized as plaintiff suggests, because the statute is unambiguous it is inappropriate for us even to consider it. In directing the court’s attention to legislative intent, plaintiff overlooks the well-established and long-recognized rule that, where a statute is free of ambiguity, it is to be applied as written. The Supreme Court has instruct ed ad nauseam: “[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others,” which is “that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 1S.Ct. 1146, 117 L.Ed.2d 391 (1992). The Court has made clear that “[w]hen the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Id. at 254, 112 S.Ct. 1146. See also United States v. Gonzales, 520 U.S. 1, 6, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)(“Given the straightforward statutory command, there is no reason to resort to legislative history.”); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)(“[W]e do not resort to legislative history to cloud a statutory text that is clear.”); Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)(“To begin, we note that appeals to statutory history are well taken only to resolve statutory ambiguity.”). Second, we are not so sure that plaintiffs characterization of the statutory purpose — to advance the interests of judicial economy — is perfectly precise. To be sure, requiring exhaustion does improve judicial economy: after all, mandatory initial resort to prison grievance procedures — even in instances where prisoners seek only monetary relief, see Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) — provides a forum for resolution that may render resort to the courts unnecessary. In this way the court" }, { "docid": "11579936", "title": "", "text": "negotiable instruments are not necessarily commensurate with those involving security interests.” Arnett, 731 F.2d at 362. The Uniform Commercial Code’s thirty-day provision for giving notice of dishonor of a check explains customary time limits for transfers by check. Provisions governing perfection of a security interest, however, provide other time limits. For example, section 9-304(4)(b) provides that a security interest in instruments and documents will be temporarily perfected for twenty-one days without delivery and without the filing of a financing statement. Thus, one might argue that a security interest is “substantially contemporaneous” if perfected within twenty-one days. In fact, the provisions of section 60(a)(7) of the Bankruptcy Act (which were analogous to section 547(e) of the Bankruptcy Code) provided a twenty-one-day grace period for perfection of security interests. Collier, ¶ 547.05[1], at 547-70, n. 2. The court’s purpose, however, is not to invent approaches that make accommodations to the parties’ intent, but to construe legislation to effect legislative intent. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975), quoted in Arnett, 731 F.2d at 360. Such intent should be gleaned from the statute itself, or if the statute is ambiguous, by reference to available legislative materials that clearly reveal the intent. Arnett, 731 F.2d at 361, see Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991) (appeals to statutory history should be taken only to resolve ambiguities). Finally, in construing a statute, courts are to consider provisions in the context of the entire statute, and are to avoid a construction of one part or provision that renders another part redundant or superfluous. Jarecki v. Searle & Co., 367 U.S. 303, 307-308, 81 S.Ct. 1579, 1582-1583, 6 L.Ed.2d 859 (1961). Unlike cash or check transactions, to which section 547(e) does not apply, section 547(e) specifically addresses transfers of interests in real estate, personal property, and transfers that perfect security interests. With respect to real estate and personal property, section 547(e)(1) accomplishes one task: it declares when a transfer occurs for purposes of section 547. With respect to security interests, however," }, { "docid": "3532724", "title": "", "text": "no weight to legislative history that supported both parties); cf. Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991) (examining conflicting legislative history and concluding that it afforded little help is determining whether the Bankruptcy Code permitted an individual debtor to file for chapter 11 relief). Debtor’s principal problem is how to overcome the clear, unambiguous language of § 523(a)(16). The Supreme Court has repeatedly held that in interpreting statutes under the Bankruptcy Code, a court must begin with the statute itself. Pennsylvania Dep’t of Public Welfare v. Davenport, 495 U.S. 552, 557-58, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). When the statute is clear and unambiguous on its face, the court must apply the plain meaning of the statute and enforce it according to its terms. Patterson v. Shumate, 504 U.S. 753, 757, 112 S.Ct. 2242, 2246, 119 L.Ed.2d 519 (1992) (“the plain language of the Bankruptcy Code ... is our determinant”); Toibb v. Radloff, 501 U.S. 157, 160, 111 S.Ct. 2197, 2199, 115 L.Ed.2d 145 (1991) (“In our view, the plain language of the Bankruptcy Code disposes of the question before us.”); Ron Pair Enterprises, 489 U.S. at 241, 109 S.Ct. at 1030 (“[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute”). It is only when the statute is ambiguous that a court is permitted to look behind the words to attempt to derive the legislature’s intent. Patterson, 504 U.S. at 761, 112 S.Ct. at 2248 (“Although courts ‘appropriately may refer to a statute’s legislative histoiy to resolve statutory ambiguity,’ the clarity of the statutory language at issue in this case obviates the need for any such inquiry.”) (quoting Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991); Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S.Ct. 773, 779, 116 L.Ed.2d 903 (1992); Ron Pair Enterprises, 489 U.S." }, { "docid": "7594814", "title": "", "text": "debt- or is not the property of the debtor’s estate, the examples raised by the appellees are inapplicable here. First, section 541(d) refers to secondary mortgages, not commissions. Second, Louisiana does not recognize constructive trusts. See In re Emerald Oil Co., 807 F.2d 1234, 1238 (5th Cir.1987). Section 541 defines those interests of the debtor that are transferrable to the debtor’s estate, but it leaves to state law the task of defining the extent of the debtor’s interest. Therefore, while the legislative history mentions the possibility of a constructive trust under certain circumstances, the final resolution is made by nonbankruptcy law. In our case, that law is Louisiana law. Additionally, we reject the appellees’ contention that the funds were “earmarked” for them. Rather, the funds were placed in an escrow account by the bankruptcy court pending resolution of the case. This account was later terminated. Finally, the appellees’ reliance on section 541’s legislative history is misplaced. It is well established that where a statute is unambiguous, reference to legislative history is unnecessary. See, e.g., Barnhill v. Johnson, 503 U.S. -, -, 112 S.Ct. 1386, 1391, 118 L.Ed.2d 39 (1992) (“[A]ppeals to statutory history are well-taken only to resolve ‘statutory ambiguity.’ ”); Toibb v. Radloff, 501 U.S. -, -, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991). 2. The appellees’ next argument is that the contractual arrangement between the parties created an agency relationship. Specifically, the appellees allege that Oxford, by collecting the commissions on the appel-lees’ behalf, acted as their agent. Under Louisiana law, an agency relationship is created either by express appointment of a man-datary under Civil Code Article 2985 or by implied appointment arising from apparent authority. Civil Code Article 2985 (West 1979); see also Richard A. Cheramie Enterprises, Inc. v. Mt. Airy Refining Co., 708 F.2d 156 (5th Cir.1983). An agency relationship is created by implication “when, from the nature of the principal’s business and the position of the agent within that business, the agent is deemed to have permission from the principal to undertake certain acts____” AAA Tire & Export, Inc. v. Big Chief Truck Lines," }, { "docid": "3532725", "title": "", "text": "... is our determinant”); Toibb v. Radloff, 501 U.S. 157, 160, 111 S.Ct. 2197, 2199, 115 L.Ed.2d 145 (1991) (“In our view, the plain language of the Bankruptcy Code disposes of the question before us.”); Ron Pair Enterprises, 489 U.S. at 241, 109 S.Ct. at 1030 (“[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute”). It is only when the statute is ambiguous that a court is permitted to look behind the words to attempt to derive the legislature’s intent. Patterson, 504 U.S. at 761, 112 S.Ct. at 2248 (“Although courts ‘appropriately may refer to a statute’s legislative histoiy to resolve statutory ambiguity,’ the clarity of the statutory language at issue in this case obviates the need for any such inquiry.”) (quoting Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991); Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S.Ct. 773, 779, 116 L.Ed.2d 903 (1992); Ron Pair Enterprises, 489 U.S. at 235, 109 S.Ct. at 1030; United Sav. Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 377-79, 108 S.Ct. 626, 634, 98 L.Ed.2d 740 (1988). Here, the court finds that § 523(a)(16) is clear and unambiguous on its face, and correspondingly, the court need not look behind the statute to consider legislative history. Congress in enacting § 523(a)(16) drafted a very precise and specific section. Had it intended to include homeowner’s association assessments, it easily could have done so. But it did not. For some unexplained reason, language from the section-by section analysis that arguably supports debtor’s position (“or similar membership associations”), was omitted and excluded from the section as enacted. Perhaps this was intentional. Perhaps it was an oversight. However, it is not this court’s duty — or province — to rewrite Congress’s enactments. Patterson, 504 U.S. at 759, 112 S.Ct. at 2247 (“We must enforce the statute according to its terms.”). Simply because Congress did not predict all of the consequences of a statutory enactment is not a sufficient basis for" }, { "docid": "18550767", "title": "", "text": "Debtor’s course of performance in paying the Defendant during the pre-preference period compared to the payments it made to the Defendant within the preference period. In re Yurika Foods Corp., 888 F.2d 42, 44 (6th Cir.1989); In re Decor Noel Corp., 134 B.R. 883, 888 (W.D.Tenn.1991). It appears that the parties disagree on when a transfer is deemed to have occurred where payment is made by check. This leads them to calculate different averages for the time between when invoices were issued and when they were paid. The Debtor directs the court to Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992), for the proposition that, “[f|or the purposes of payment by ordinary check ... a ‘transfer’ as defined by § 101(54) occurs on the date of honor, and not before.” Id. at 400, 112 S.Ct. at 1390. Barnhill, however, dealt with § 547(b) as opposed to § 547(c). The Supreme Court itself noted in Barnhill that the purposes behind the two subsections are different. Accordingly, it stated: “[W]e see no basis for concluding that the legislative history, particularly legislative history explicitly confined by its own terms to § 547(e), should cause us to adopt a ‘date of delivery’ rule for purposes of § 547(b).” Id. at 402, 112 S.Ct. at 1391. Barnhill thus left in place those decisions which utilized the date of delivery rule for § 547(c). Indeed, the Supreme Court in Barnhill went so far as to say in a footnote: “Those Courts of Appeal to have considered the issue are unanimous in concluding that a date of delivery rule should apply to check payments for purposes of § 547(c).” Id. at 402 n. 9, 112 S.Ct. at 1391 n. 9. One of the cases the footnote cites is In re Continental Commodities, Inc., 841 F.2d 527 (4th Cir.1988), which is still good law and binding on this court for § 547(c) purposes. In re National Enterprises, Inc., 174 B.R. 429, 433 (Bankr.E.D.Va.1994) (“While the Supreme Court in Barnhill eschewed the use of legislative history in interpreting § 547(b), and may have cast" }, { "docid": "20272696", "title": "", "text": "that we apply the rule of lenity, the Majority states: “Nor is the phrase ‘involved in’ ambiguous.” Id. at 279. Despite this conclusion, the Majority expounds upon the legislative histories of the Gun Control Act and the Firearm Owners Protection Act to buttress its textual interpretation of § 924(d)(1). Id. at 278-80. At least six of the sitting Justices of the Supreme Court have counseled against this approach. See, e.g., Boyle v. United States, — U.S. -, -, 129 S.Ct. 2237, 2246, 173 L.Ed.2d 1265 (2009) (Alito, J.) (“Because the statutory language is clear, there is no need to reach petitioner’s remaining arguments based on ... legislative history....”); Zedner v. United States, 547 U.S. 489, 509-10, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (Scalia, J., concurring in part and concurring in the judgment) (“Here, the Court looks to legislative history even though the remainder of its opinion amply establishes that the [statute] is unambiguous ... Use of legislative history in this context ... conflicts ... with this Court’s repeated statements that when the language of the statute is plain, legislative history is irrelevant.”); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (Kennedy, J.) (“As the conclusion we reach today is directed by the text of [the statute], we need not assess ... legislative history....”); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (Ginsburg, J.) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (Thomas, J.) (“When the words of a statute are unambiguous, ... [the] judicial inquiry is complete.”) (internal quotation marks omitted); see also William L. Rudkin Testamentary Trust v. Comm’r, 467 F.3d 149, 152 (2d Cir.2006) (Sotomayor, J.) (quoting Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991)) (“ ‘[Although a court appropriately may refer to a statute’s legislative history to resolve statutory ambiguity, there is no need to do so’ if the statutory language" }, { "docid": "20272697", "title": "", "text": "the statute is plain, legislative history is irrelevant.”); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (Kennedy, J.) (“As the conclusion we reach today is directed by the text of [the statute], we need not assess ... legislative history....”); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (Ginsburg, J.) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (Thomas, J.) (“When the words of a statute are unambiguous, ... [the] judicial inquiry is complete.”) (internal quotation marks omitted); see also William L. Rudkin Testamentary Trust v. Comm’r, 467 F.3d 149, 152 (2d Cir.2006) (Sotomayor, J.) (quoting Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991)) (“ ‘[Although a court appropriately may refer to a statute’s legislative history to resolve statutory ambiguity, there is no need to do so’ if the statutory language is clear.”). For the foregoing reasons, I do not join that portion of the Court’s opinion that delves into legislative history." }, { "docid": "11579937", "title": "", "text": "Arnett, 731 F.2d at 360. Such intent should be gleaned from the statute itself, or if the statute is ambiguous, by reference to available legislative materials that clearly reveal the intent. Arnett, 731 F.2d at 361, see Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991) (appeals to statutory history should be taken only to resolve ambiguities). Finally, in construing a statute, courts are to consider provisions in the context of the entire statute, and are to avoid a construction of one part or provision that renders another part redundant or superfluous. Jarecki v. Searle & Co., 367 U.S. 303, 307-308, 81 S.Ct. 1579, 1582-1583, 6 L.Ed.2d 859 (1961). Unlike cash or check transactions, to which section 547(e) does not apply, section 547(e) specifically addresses transfers of interests in real estate, personal property, and transfers that perfect security interests. With respect to real estate and personal property, section 547(e)(1) accomplishes one task: it declares when a transfer occurs for purposes of section 547. With respect to security interests, however, section 547(e)(2) accomplishes two purposes: it specifies when perfection occurs; and it provides a grace period that permits the date of perfection to relate back to the date of the original transfer if perfection occurs within ten days. I find the different treatment reveals Congress’s intent to pronounce the amount of delay Congress considered tolerable for perfection of a security interest. Although there is virtually no legislative history for section 547(e) to explain why the section provides a grace period for perfection of security interests but not for perfection of other transfers, it is clear that Congress has long afforded special treatment to the perfection of security interests in the area of preferential transfers. As noted, provisions analogous to section 547(e)(2) existed under the Bankruptcy Act of 1898 which provided a grace period of twenty-one days. In 1978, Congress codified the contemporaneous exchange exception originating in Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419 (1917), and in so doing, specifically chose to reduce the grace period of section 547(e)(2) to ten" }, { "docid": "1778007", "title": "", "text": "375 (1972)), reh’g and reh’g en banc denied (2004). There are only limited instances when resort to legislative history may be appropriate. For example, a court may consider legislative history if: [T]he plain meaning produces a result that is not just “harsh,” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982), “curious,” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 172, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978), or even “stark and troubling,” Estate of Cowart, 505 U.S. at 483, 112 S.Ct. at 2598, but “so bizarre that Congress ‘could not have intended’ it,” Demarest v. Manspeaker, 498 U.S. 184, 186, 190-91, 111 S.Ct. 599, 601-02, 603-04, 112 L.Ed.2d 608 (1991). Weddel v. Sec’y of Dep’t of Health and Human Servs., 23 F.3d at 391. Moreover, legislative history may be introduced into the analysis to resolve an ambiguously worded statute. Ratzlaf v. United States, 510 U.S. at 148 n. 18, 114 S.Ct. 655 (citing Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)); Patterson v. Shumate, 504 U.S. 753, 761, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). “If legislative history is to be considered, it is preferable to consult the documents prepared by Congress when deliberating.” Gustafson v. Alloyd Co., 513 U.S. 561, 580, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). “[T]he authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.’” Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (quoting Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969)). In exceptional circumstances, when there is no legislative history that helps resolve the ambiguity in the statute, the court may consider a “look beyond the statutory language to the statute’s purpose to determine its meaning.” Candle Corp. of America v. United States Int’l Trade Comm’n, 374 F.3d 1087, 1093 (Fed.Cir.) (citing Holloway v. United States, 526 U.S. 1, 9, 119 S.Ct. 966," } ]

[ { "docid": "22974642", "title": "", "text": "jury’s finding of retaliation. In order to make out a prima facie case of retaliation, Marrero had to prove that (1) she engaged in protected conduct under Title VII; (2) she suffered an adverse employment action; and (3) the adverse action was causally connected to the protected activity. Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998). Goya does not dispute that Marrero engaged in conduct that is protected by Title VII when she filed her sexual harassment charge. It maintains, however, that Mar-rero never suffered an “adverse employment action” as a result of that conduct. We have explained that “[ajdverse employment actions include ‘demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.’ ” White, 221 F.3d at 262 (quoting Hernandez-Torres, 158 F.3d at 47); accord Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1283 (11th Cir.1999). Whether an employment action is “adverse” — and therefore actionable under Title VII — is gauged by an objective standard. Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996). ‘Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.” Id. Here, Marrero’s retaliation claim rests on two separate,- and allegedly adverse, employment actions: her transfer to the Human Resources Department; and Goya’s toleration of harassment by other employees. We address those claims in turn. A. Disadvantageous Transfer Marrero filed a charge of employment discrimination with the EEOC on November 13, 1996. She returned to work on Wednesday, November 22, to find that she had been transferred to the Human Resources Department, where she was to serve as Nieves’s secretary. Marrero concedes that the transfer was not, on its face, a demotion. She continued to serve as secretary to a Vice President in the company, and her general job description and salary remained the same. Nevertheless, Marrero argues that the transfer was “disadvantageous” because she was required to do more work, subjected to" } ]

[ { "docid": "20452317", "title": "", "text": "or about November 1, 2006. On November 2, 2006, she was informed that a reserved parking spot could not be assigned to her. The Municipality does not dispute that Colón engaged in.protected activity. Instead, it contests Colon’s ability to establish the second and third factors of a retaliation claim, ie., Colón cannot show she suffered an adverse employment action that both caused her material harm and is linked to her request for a parking spot. To establish an adverse employment action, Colón must show that “a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)) (internal quotation marks omitted). For retaliatory action to be material, it must produce “a significant, not trivial, harm,” Carmona-Rivera, 464 F.3d at 20; actions like “petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence.” Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405. However, “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees” may constitute adverse employment action, subject to the facts of a particular case. Hernández-Torres v. Intercont’l Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998); see also Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996) (noting that adverse action determination requires a case-by-case inquiry). For causality to be established, the plaintiff must show a nexus between the protected conduct and the alleged retaliatory act. Wright, 352 F.3d at 478; see also Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir.2005) (noting that to establish a prima facie case of retaliation, a plaintiff must show that the defendant “took an adverse employment action against him because of, in whole or in part, his protected [conduct]”). “One way of showing causation is by establishing that the employer’s knowledge of the protected activity" }, { "docid": "3856166", "title": "", "text": "a number of cases have extended coverage to slights or indignities that might seem evanescent.” Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.1997). “Typically, the employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service.” Blackie v. State of Maine, 75 F.3d 716, 725 (1st Cir.1996). “Determining whether an action is materially adverse necessarily requires a case-by-case inquiry. Moreover, the inquiry must be cast in objective terms. Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.” Id. (emphasis added; citations omitted). Our review leads us to conclude that these employment actions, viewed in aggregate, could be considered “materially adverse.” The fact that Citizens did not reduce Simas’ salary or benefits, though plainly relevant, is not conclusive. See Serrano-Cruz, 109 F.3d at 26 (ADEA); Collins v. State of Illinois, 830 F.2d 692, 702-03 (7th Cir.1987) (Title VII). The district court overlooked the crucial, undisputed fact that Silva withdrew from Si-mas all responsibility for the Xifiras account. See Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) (conduct is adverse employment action if it “constitutes a significant change in employment status, such as ... reassignment with significantly different responsibilities”); Collins, 830 F.2d at 703 & n. 7 (describing various changes to basic aspects of the job). As the vice-president for collections and credit, Simas’ core responsibility was to collect delinquent loans, and the $838,000 Xifi-ras loan was by far the largest Citizens loan. Thus, Simas clearly was not acting ultra vires in investigating the Xifiras loan. Rather, there can be no serious question that removing Citizens’ chief loan and collection officer from any responsibility whatever for its largest outstanding loan" }, { "docid": "19917943", "title": "", "text": "claimed that a department reorganization that resulted in a different reporting structure for him was a retaliatory adverse employment action. 423 Mass, at 661, 672 N.E.2d 1. The Supreme Judicial Court ruled that plaintiffs complaints “amounted] to no more than subjective feelings of disappointment and disillusionment” because he did not establish that “he had been disadvantaged in respect to salary, grade, or other objective terms and conditions of employment.” Id. at 663, 672 N.E.2d 1. The other evidence, whether considered individually or as a whole, does not amount to a materially adverse action. In the context of this case, “[t]o be adverse, an action must materially change the conditions of plaintiff’s] employ.” Gu v. Boston Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002). There is no evidence that her prohibition from the Selectmen’s office or- the ban on social contact with Hazen during office hours have materially affected her. In any event, they are not materially adverse actions under the circumstances. Likewise, the criticism about her job per formance and the reprimand, while certainly unpleasant, were not shown to have had any tangible impact on her employment or future employment relationship. See Hernandez-Torres, 158 F.3d at 47 (supervisor’s admonition to complete work within a specified time period “or else” not an adverse employment action); Rodriguez v. Potter, 419 F.Supp.2d 58, 66 (D.P.R.2006) (formal warning letter, not accompanied by any loss of pay or benefits, and not used as a precedent to any other action, not an adverse employment action); Bain, 424 Mass, at 765-66, 678 N.E.2d 155 (that mayor acted “coldly” or had hostile body language toward city employee, and that her supervisor “second-guessed her” were “subjective and intangible impressions” that could not be considered retaliatory actions); cf. Noviello, 398 F.3d at 89 (for retaliatory harassment to be actionable, it must be so severe or pervasive to materially alter the conditions of plaintiffs employment); Thomas v. Eastman Kodak Co., 183 F.3d 38, 54-55 (1st Cir.1999) (for statute of limitations purposes, a negative performance evaluation will not trigger the running of the statute unless the plaintiff is on notice of" }, { "docid": "22419066", "title": "", "text": "when it materially disadvantages the complainant with regard to any of the terms or conditions of her employment. The term ‘adverse action’ can encompass ... hostile or abusive workplace treatment.”); Wareing v. New Bedford Sch. Dep’t, No. 99-BEM-3363, 2004 WL 2361016, at *8 (MCAD Oct. 6, 2004) (“Retaliation may ... take the form of hostile or abusive workplace treatment.”). To say more on this topic would be to paint the lily. For the reasons elucidated above, we hold that, under Massachusetts law as under Title VII, subjecting an employee to a hostile work environment in retaliation for protected activity constitutes an adverse employment action (and, thus, triggers the statutory prophylaxis). D. Retaliatory Hostile Work Environment: Sufficiency of Proof. We have established that, as a theoretical matter, subjecting a party to a hostile work environment in retaliation for protected activity may be actionable under both Title VII and chapter 151B. That poses the question whether the evidence in this case, viewed in the light most favorable to the plaintiff, Garside, 895 F.2d at 48, shows that a hostile work environment existed. We turn to thát question. 1. Elements of the Cause of Action. An allegedly retaliatory act must rise to some level of substantiality before it can be actionable. Wideman, 141 F.3d at 1456; MacCormack v. Boston Edison Co., 423 Mass. 652, 672 N.E.2d 1, 7-8 (1996). The hostile work environment doctrine, as developed in the anti-discrimination jurisprudence of Title VII, embodies that prerequisite. In order to prove a hostile work environment, a plaintiff must show that she was subjected to severe or pervasive harassment that materially altered the conditions of her employment. Faragher, 524 U.S. at 786, 118 S.Ct. 2275. The harassment must be “objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Id. at 787, 118 S.Ct. 2275. In determining whether a reasonable person would find particular conduct hostile or abusive, a court must mull the totality of the circumstances, including factors such as the “frequency of the discriminatory conduct; its severity;" }, { "docid": "20452318", "title": "", "text": "annoyances, and simple lack of good manners will not [normally] create such deterrence.” Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405. However, “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees” may constitute adverse employment action, subject to the facts of a particular case. Hernández-Torres v. Intercont’l Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998); see also Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996) (noting that adverse action determination requires a case-by-case inquiry). For causality to be established, the plaintiff must show a nexus between the protected conduct and the alleged retaliatory act. Wright, 352 F.3d at 478; see also Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir.2005) (noting that to establish a prima facie case of retaliation, a plaintiff must show that the defendant “took an adverse employment action against him because of, in whole or in part, his protected [conduct]”). “One way of showing causation is by establishing that the employer’s knowledge of the protected activity was close in time to the employer’s adverse action.” Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.1994). We address each of Colon’s alleged retaliatory acts in turn, relying on her categorization of the acts on appeal and applying an objective standard. See Burlington Northern, 548 U.S. at 68-69, 126 S.Ct. 2405; Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010) (test for retaliation is “objective” and “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances”) (quoting Burlington Northern, 548 U.S. at 71, 126 S.Ct. 2405) (internal quotation marks omitted). 1. Temporary Removal of Work Equipment Colón, relying on the testimony of coworker Adela Otero, asserts the Municipality eliminated her “essential working tools” in retaliation for her October 2006 request for a parking spot. Otero testified in her deposition that sometime after Colón returned to work following a health-related absence (unclear from the record as to when), Colón had to work without a telephone for approximately two to three months." }, { "docid": "3159346", "title": "", "text": "adverse’ if they are ‘harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Hicks, 593 F.3d at 165 (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Whether an employer’s action could dissuade a reasonable employee, situated similarly to the plaintiff, from making a charge of discrimination is an objective determination. See Tepperwien, 663 F.3d at 567. “Alleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct.” Id. at 568. However, to be “materially adverse,” a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir.2012) (internal quotation marks omitted). “ ‘[P]etty slights, minor annoyances, and simple lack of good manners will not’ give rise to actionable retaliation claims.” Millea v. Metro-North R.R., 658 F.3d 154, 165 (2d Cir.2011) (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405). Actions “sufficiently disadvantageous” so as to constitute an adverse employment action “include a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.2004) (citation and internal quotation marks omitted). Here, Moccio alleges that Dean Katz engaged in a series of retaliatory actions, starting in 2005 and ending with notice of her termination in October 2008. The Court construes Moccio to identify the following as adverse employment actions: (1) Katz’s decision, after the ILR reorganization, to assign Moccio to a thematic group without “giv[ing] [her] any choice” as to which group, see Moccio Dep. at 101; (2) Katz’s decision to assign Moccio to report to a thematic lead rather than the dean, see id. at 38; (3) Katz’s initial refusal" }, { "docid": "19917937", "title": "", "text": "whether the acts alleged to have been taken against Billings rise to the level of a “materially adverse” action such that it “well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. -, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345; see also MacCormack, 423 Mass, at 662, 672 N.E.2d 1 (action must be to plaintiffs material disadvantage). Adverse employment actions include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.” Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998); see MacCormack, 423 Mass, at 662, 672 N.E.2d 1 (requiring a materially disadvantageous change in working conditions). Whether an action is adverse is measured by an objective standard. Bur lington Northern, 548 U.S. at -, 126 S.Ct. 2405, 2414-15; Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 23 (1st Cir.2002); MacCormack, 423 Mass, at 663, 672 N.E.2d 1. Where an adverse action is alleged to have occurred in the workplace, it is materially adverse if the employer “(1) take[s] something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities or (2) withhold[s] from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for a promotion after a particular period of service.” Blackie v. Maine, 75 F.3d 716, 725-26 (1st Cir.1996) (citations omitted). The “creation and perpetuation of a hostile work environment” can also constitute a materially adverse action under Title VII and Chapter 151B. Noviello, 398 F.3d at 88. An ostensibly lateral job transfer can be a materially adverse action if it is in substance a demotion. Marrero, 304 F.3d at 23. In Marrero, the First Circuit explained that “a transfer or reassignment that involves only minor changes in working conditions” normally is not actionable, even if it causes the plaintiff to feel “stigmatized and punished.” Id. at 23-25. But a transfer that results in an objectively “more tangible change in duties or working conditions” can be" }, { "docid": "19917933", "title": "", "text": "assert claims of retaliation under Title VII and Mass. Gen. Laws Chapter 151B, respectively. The anti-retaliation provisions of Title VII state as follows: Ht shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3(a). Similarly, Chapter 151B provides that it is an unlawful practice “[f]or any person [or] employer ... to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under [Chapter 151B],” § 4(4), or “[f]or any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by [Chapter 151B],” § 4(4A). A plaintiff must establish three elements to prove a prima facie case of retaliation under either statute. Under Title VII, the plaintiff must establish that (1) she engaged in protected conduct, (2) she suffered a materially adverse action in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” and (3) there is a causal connection between the protected activity and the adverse action. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.-, 126 S.Ct. 2405, 165 L.Ed.2d 345, 2006 WL 1698953, at *10 (June 22, 2006); Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005). Under Chapter 151B, the first and third elements of the prima facie case are the same; the second element apparently requires that there be a materially adverse employment action. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662, 672 N.E.2d 1 (1996) (plaintiff must establish adverse employment action “substantial enough to count as the kind of material disadvantage that is a predicate for a finding of unlawful retaliation”); Ritchie v. Dep’t of State Police, 60 Mass.App.Ct. 655, 664 & n. 16, 805 N.E.2d 54 (2004) (plaintiff must show that she suffered an “adverse employment" }, { "docid": "19917934", "title": "", "text": "engaged in protected conduct, (2) she suffered a materially adverse action in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” and (3) there is a causal connection between the protected activity and the adverse action. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.-, 126 S.Ct. 2405, 165 L.Ed.2d 345, 2006 WL 1698953, at *10 (June 22, 2006); Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005). Under Chapter 151B, the first and third elements of the prima facie case are the same; the second element apparently requires that there be a materially adverse employment action. See MacCormack v. Boston Edison Co., 423 Mass. 652, 662, 672 N.E.2d 1 (1996) (plaintiff must establish adverse employment action “substantial enough to count as the kind of material disadvantage that is a predicate for a finding of unlawful retaliation”); Ritchie v. Dep’t of State Police, 60 Mass.App.Ct. 655, 664 & n. 16, 805 N.E.2d 54 (2004) (plaintiff must show that she suffered an “adverse employment action”; in the case of claim for coercion, intimidation, or threats under § 4(4A), the threat itself suffices to meet this prong). The claimed retaliatory actions in this case are clearly connected to Billings’s employment, so the distinction between the statutes is not significant here. The primary issue, as fully explained below, is whether a jury could find that they are materially adverse. Under both statutes, once the plaintiff has established this prima facie showing, defendant must articulate a legitimate, nonretaliatory reason for its action in order to avoid summary judgment. Valentin-Almeyda v. Municipality of Aguadillo, 447 F.3d 85, 95 (1st Cir.2006); Mole, 442 Mass, at 591, 814 N.E.2d 329. If the defendant meets this burden, plaintiff must show that the decision was a pretext for the defendant’s retaliatory animus. Valentin-Almeyda, 447 F.3d at 95; Mole, 442 Mass, at 591, 814 N.E.2d 329; see also Abramian v. President & Fellows of Harvard Coll, 432 Mass. 107, 121, 731 N.E.2d 1075 (2000) (plaintiff must show that the employer’s “desire to retaliate against [him] was a determinative" }, { "docid": "20036821", "title": "", "text": "following: ... An impairment that is episodic or in. remission is a disability if it would substantially limit a major life activity when active.”); Bragdon v. Abbott, 524 U.S. 624, 635-36, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (holding that HIV infected plaintiff was \"disabled” under the ADA even during the \"asymptomatic” stage of the disease); School Bd. of Nassau County v. Arline, 480 U.S. 273, 281, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987) (holding that teacher with long dormant disease of tuberculosis that had recently reoccurred was \"handicapped” within meaning of Rehabilitation Act). . As explained, supra section II.B., the definition of \"handicap” under Chapter 15 IB and \"disability” under the ADA are virtually identical, and the SJC regularly applies ADA precedent to the interpretation of cases under the Massachusetts statute. See, e.g., Russell, 772 N.E.2d at 1062 n. 6; Labonte, 678 N.E.2d at 855 n. 5. Following the SJC’s example, we do the same. . See also Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005) (holding that adverse employment effects include, but are not limited to, such discrete actions as discharge, demotion, or reduction in pay); Blackie v. State of Me., 75 F.3d 716, 725 (1st Cir.1996) (noting in context of FLSA case that to constitute adverse employment action, “the employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, ... or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service.” (internal citations omitted)). . See LeBeau, 664 N.E.2d at 25 (\"Where the employee has brought unemployment on herself without good cause, there is no entitlement to unemployment benefits”) (quoting Leone v. Director of the Div. of Employment Sec., 397 Mass. 728, 493 N.E.2d 493 (1986)); Mass. Gen. Laws ch. 151A, § 25(e)(1) (disqualifying employee from receiving unemployment benefits if she left work “voluntarily unless the employee establishes by ... that [s]he had good cause for leaving attributable" }, { "docid": "20036807", "title": "", "text": "requests to be restored to the work schedule are not found to amount to a “termination,” a question as to which we conclude there exists a material factual dispute, Outback’s conduct nevertheless amounts to other “adverse employment action,” that satisfies the third prong of Carroll. We agree. “Under G.L. c. 151B, § 4(4), adverse actions consist of a defendant’s action ‘to discharge [or] expel’ ” but also, to “ ‘otherwise discriminate against’ the plaintiff.” Mole v. Univ. of Mass., 442 Mass. 582, 814 N.E.2d 329, 339 n. 14 (2004). Thus, Sensing can satisfy the third element of her prima facie case by raising a genuine issue as to whether appellees “took ... adverse employment action against [her],” other than termination. Carroll, 294 F.3d at 237. Such other adverse employment actions may include “disadvantag[ing][her] in respect to salary, grade, or other objective terms and conditions of employment.” MacCormack, 672 N.E.2d at 8; see also Blackie, 75 F.3d at 725 (including demotion, reduction in salary and divestment of significant responsibilities as examples of adverse employment actions). Massachusetts “[c]ases have employed the phrase ‘adverse employment action’ to refer to the effects on working terms, conditions, or privileges that are material, and thus governed by the statute, as opposed to those effects that are trivial and so not properly the subject of a discrimination action.” King v. City of Boston, 71 Mass.App.Ct. 460, 883 N.E.2d 316, 323 (2008). “Determining whether an action is materially adverse necessarily requires a case-by-case inquiry.” Blackie, 75 F.3d at 725. The record establishes that appellees removed Sensing from the work schedule after she missed only one and a half covered shifts, offering her in the alternative a “light duty” position with substantially reduced salary, hours and responsibilities. These actions disadvantaged Sensing with respect to the terms and conditions of her employment, see MacCormack, 672 N.E.2d at 8, and amounted to far more than mere trivial inconveniences. See King, 883 N.E.2d at 324 (noting that “materially adverse employment action requires more than trivial, subjectively perceived incon verbenees.” (citations omitted)). Rather, although the demotion was intended to be temporary, in light" }, { "docid": "23642480", "title": "", "text": "VII). What is unclear is whether the plaintiffs have introduced evidence showing that they were subjected to adverse employment actions or that any adverse actions were causally related to the filing of their complaint. Plaintiffs point to a whole host of actions which they claim are adverse. To be adverse, an action must materially change the conditions of plaintiffs’ employ. Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996) (“Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.”); MacCormack v. Boston Edison Co., 423 Mass. 652, 672 N.E.2d 1, 7 (1996) (indicating plaintiff must demonstrate “a change in working conditions that materially disadvantaged him” to demonstrate an adverse employment action). Material changes include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.” Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998). Here, plaintiffs complain about a variety of changes in the office including: (1) loss of supervisory authority; (2) exclusion from office meetings; and (3) diminished communication regarding office matters. Certainly, if an employee suddenly finds herself with dramatically decreased supervisory authority and without a voice in major decisions, this could constitute an adverse employment action. Cf. Marrero v. Goya of P.R., 304 F.3d 7, 23-24 (1st Cir.2002) (noting that a monetary impact is not necessary for an action to be materially adverse so long as the action is “equally adverse”). Interpreted in favor of plaintiffs, the record supports the conclusion that plaintiffs lost some of their supervisory authority because the absolute number of their respective subordinates decreased. However, this change occurred as a result of a general restructuring of ORE, which included a new Director, new Deputy Director, and a shift in focus from research to crime analysis/GIS for the ORE. Cf. Hernández-Torres, 158 F.3d at 47 (holding that the imposition of additional responsibilities on plaintiff did not constitute an adverse employment action when other employees, not engaged in" }, { "docid": "20036822", "title": "", "text": "include, but are not limited to, such discrete actions as discharge, demotion, or reduction in pay); Blackie v. State of Me., 75 F.3d 716, 725 (1st Cir.1996) (noting in context of FLSA case that to constitute adverse employment action, “the employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, ... or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service.” (internal citations omitted)). . See LeBeau, 664 N.E.2d at 25 (\"Where the employee has brought unemployment on herself without good cause, there is no entitlement to unemployment benefits”) (quoting Leone v. Director of the Div. of Employment Sec., 397 Mass. 728, 493 N.E.2d 493 (1986)); Mass. Gen. Laws ch. 151A, § 25(e)(1) (disqualifying employee from receiving unemployment benefits if she left work “voluntarily unless the employee establishes by ... that [s]he had good cause for leaving attributable to the employ[er]”). . Sensing also argues that she can sustain a claim of wrongful discharge by proving that she was “constructively discharged” from her takeaway position at Outback. GTE Prods. Corp. v. Stewart, 421 Mass. 22, 653 N.E.2d 161, 168 (1995). A \"[c]onstructive discharge occurs when the employer’s conduct effectively forces an employee to resign ... [and when] the employment relationship is actually severed involuntarily by the employer's acts against the employee’s will.” Id. The inquiry for purposes of a constructive discharge claim is an objective one: \"Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). We need not decide, however, whether a reasonable person in Sensing’s position would have felt compelled to resign because Sensing denies resigning from her position at Outback. Rather, in her deposition testimony, Sensing repeatedly avers that she \"did not quit” her job. Absent resignation, Sensing's constructive discharge claim must fail. See" }, { "docid": "480066", "title": "", "text": "the protected conduct and the adverse action. Gu v. Boston Police Dep’t, 312 F.3d 6, 14 (1st Cir.2002); Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir.2002). An adverse employment action is one that “materially change[s] the conditions of plaintiffs’ employ.” Gu, 312 F.3d at 14 (citing Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996)). “Material changes include ‘demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.’ ” Id. (quoting Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998)). “Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.” Blackie, 75 F.3d at 725. Minor slights or indignities, however, when compounded over time and considered collectively, may rise to the level of an adverse employment action. See Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 48 (1st Cir. 1999) (“[Otherwise minor slights, relentlessly compounded, may become sufficiently ‘adverse’ to warrant relief ....”) (Federal Credit Union Act claim); see also Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002) (“While the other actions of which [plaintiff] complains ‘might not have individually risen to the level of adverse employment action under Title VII, when those actions are considered collectively, the total weight of them does constitute an adverse employment action.’ ”) (quoting Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1118 (11th Cir.2001)). Here, the plaintiff complains of the following as retaliation: (1) her supervisor’s treatment of her was very poor, including rolling her eyes at the plaintiff and whispering about her to others; (2) her supervisor demeaned her in the presence of co-workers by grabbing reports out of her hands, yelling at her, and hanging up the phone on her; (3) her supervisor made false and embarrassing statements to a colleague that the plaintiff had been “talking sex” with the chief of police; (4) her supervisor told her to “quiet down” or" }, { "docid": "20036808", "title": "", "text": "“[c]ases have employed the phrase ‘adverse employment action’ to refer to the effects on working terms, conditions, or privileges that are material, and thus governed by the statute, as opposed to those effects that are trivial and so not properly the subject of a discrimination action.” King v. City of Boston, 71 Mass.App.Ct. 460, 883 N.E.2d 316, 323 (2008). “Determining whether an action is materially adverse necessarily requires a case-by-case inquiry.” Blackie, 75 F.3d at 725. The record establishes that appellees removed Sensing from the work schedule after she missed only one and a half covered shifts, offering her in the alternative a “light duty” position with substantially reduced salary, hours and responsibilities. These actions disadvantaged Sensing with respect to the terms and conditions of her employment, see MacCormack, 672 N.E.2d at 8, and amounted to far more than mere trivial inconveniences. See King, 883 N.E.2d at 324 (noting that “materially adverse employment action requires more than trivial, subjectively perceived incon verbenees.” (citations omitted)). Rather, although the demotion was intended to be temporary, in light of the fact that months went by without Sensing being scheduled for work or contacted regarding the IME that could allow her to return to work, we hold that Sensing has adduced sufficient facts to establish that Outback’s actions were nevertheless “materially adverse.” Id.; Gu v. Boston Police Dept., 312 F.3d 6, 14 (1st Cir.2002) (listing “demotions [and] disadvantageous transfers or assignments” as examples of “material changes” in working conditions); see also Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71-73, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (holding that potentially indefinite suspension of employee from work without pay could constitute materially adverse employment action, even where employer awards full backpay for the entire period, and that reassignment of responsibilities could constitute materially adverse employment action, even absent demotion). Finally, having concluded that a reasonable jury could find that appellees terminated Sensing or otherwise committed adverse employment actions against her, we also hold that Sensing has put forth substantial evidence that these adverse actions, were taken, at least in part, because" }, { "docid": "19917938", "title": "", "text": "adverse if the employer “(1) take[s] something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities or (2) withhold[s] from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for a promotion after a particular period of service.” Blackie v. Maine, 75 F.3d 716, 725-26 (1st Cir.1996) (citations omitted). The “creation and perpetuation of a hostile work environment” can also constitute a materially adverse action under Title VII and Chapter 151B. Noviello, 398 F.3d at 88. An ostensibly lateral job transfer can be a materially adverse action if it is in substance a demotion. Marrero, 304 F.3d at 23. In Marrero, the First Circuit explained that “a transfer or reassignment that involves only minor changes in working conditions” normally is not actionable, even if it causes the plaintiff to feel “stigmatized and punished.” Id. at 23-25. But a transfer that results in an objectively “more tangible change in duties or working conditions” can be a materially adverse action. Id. at 25 (internal quotation omitted). Similarly, a change in the type of work that an employee performs does not always equal a demotion — particularly when the perceived adverse change is based on the employee’s subjective preferences as opposed to a change in responsibilities so significant as to constitute a setback to the employee’s career. See Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir.1980) (finding an adverse employment action where the transfer would have radically changed the nature of plaintiffs work and rendered useless her 20 years of experience and specialized study), cited with approval in Marrero, 304 F.3d at 24. In most respects, Billings’s current position is equivalent to her prior position. She enjoys the identical salary and benefits; even her opportunity for future salary increases remains substantially the same. Her duties are, for the most part, the same in both positions: typing, copying, answering the telephone, and assisting the public. It is true that her new position is slightly less prestigious than working for the" }, { "docid": "19917936", "title": "", "text": "factor in its decision.”). The fact that a plaintiff is unable to establish an underlying discrimination claim-which the Court previously concluded with respect to Billings’s sexual harassment claim — does not mean that she cannot establish a claim for retaliation. Mesnick, 950 F.2d at 827; Abramian, 432 Mass, at 121-22, 731 N.E.2d 1075. Here, there is no dispute that Billings engaged in protected activity. The parties disagree, however, as to whether Billings has satisfied the second and third elements of a retaliation claim. Specifically, defendants contend that Billings did not suffer a materially adverse action because her transfer to her current position was a lateral move with no loss of compensation, benefits, or other material accouterments of employment. Defendants also argue that the other retaliatory acts of which she complains do not rise to a materially adverse action. Finally, defendants argue that her transfer, the Town’s recent refusal to reinstate her, and the other acts of which she complains were not causally connected to her sexual-harassment complaints. 1. Materially Adverse Action The first issue is whether the acts alleged to have been taken against Billings rise to the level of a “materially adverse” action such that it “well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. -, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345; see also MacCormack, 423 Mass, at 662, 672 N.E.2d 1 (action must be to plaintiffs material disadvantage). Adverse employment actions include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.” Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998); see MacCormack, 423 Mass, at 662, 672 N.E.2d 1 (requiring a materially disadvantageous change in working conditions). Whether an action is adverse is measured by an objective standard. Bur lington Northern, 548 U.S. at -, 126 S.Ct. 2405, 2414-15; Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 23 (1st Cir.2002); MacCormack, 423 Mass, at 663, 672 N.E.2d 1. Where an adverse action is alleged to have occurred in the workplace, it is materially" }, { "docid": "19917942", "title": "", "text": "removed from those cases where courts have found that the plaintiffs did suffer materially adverse actions as a result of a job transfer or the removal of significant responsibilities. See, e.g., Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30 (1st Cir.2001); cf. Simas v. First Citizens’ Federal Credit Union, 170 F.3d 37 (1st Cir.1999). The fact that Billings’s reporting structure also changed does not require a different conclusion. For example, in Flaherty v. Gas Research Institute, the plaintiff argued that the fact that in his new position he report to a former subordinate, whereas he previously reported to a senior vice president, demonstrated that a facially lateral transfer was in substance a demotion. 31 F.3d 451, 457 (7th Cir.1994). The Seventh Circuit disagreed, reasoning that the change was “largely semantic where the employee’s salary, benefits, and level of responsibility would remain unchanged.” Id. Being placed lower on the organizational totem pole may have bruised plaintiffs ego, but it was not enough to establish a materially adverse employment action. Id. Likewise, in MacCormack, the plaintiff claimed that a department reorganization that resulted in a different reporting structure for him was a retaliatory adverse employment action. 423 Mass, at 661, 672 N.E.2d 1. The Supreme Judicial Court ruled that plaintiffs complaints “amounted] to no more than subjective feelings of disappointment and disillusionment” because he did not establish that “he had been disadvantaged in respect to salary, grade, or other objective terms and conditions of employment.” Id. at 663, 672 N.E.2d 1. The other evidence, whether considered individually or as a whole, does not amount to a materially adverse action. In the context of this case, “[t]o be adverse, an action must materially change the conditions of plaintiff’s] employ.” Gu v. Boston Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002). There is no evidence that her prohibition from the Selectmen’s office or- the ban on social contact with Hazen during office hours have materially affected her. In any event, they are not materially adverse actions under the circumstances. Likewise, the criticism about her job per formance and the reprimand, while certainly" }, { "docid": "19917939", "title": "", "text": "a materially adverse action. Id. at 25 (internal quotation omitted). Similarly, a change in the type of work that an employee performs does not always equal a demotion — particularly when the perceived adverse change is based on the employee’s subjective preferences as opposed to a change in responsibilities so significant as to constitute a setback to the employee’s career. See Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir.1980) (finding an adverse employment action where the transfer would have radically changed the nature of plaintiffs work and rendered useless her 20 years of experience and specialized study), cited with approval in Marrero, 304 F.3d at 24. In most respects, Billings’s current position is equivalent to her prior position. She enjoys the identical salary and benefits; even her opportunity for future salary increases remains substantially the same. Her duties are, for the most part, the same in both positions: typing, copying, answering the telephone, and assisting the public. It is true that her new position is slightly less prestigious than working for the Town’s highest executive employee, and that her current job (on paper) requires lesser qualifications. An objectively reasonable loss of prestige is one factor suggesting that a change of duties may constitute a materially adverse action. Burlington Northern, 548 U.S. -, 126 S.Ct. 2405, 2416-17, 165 L.Ed.2d 345 (plaintiffs former job duties required more qualifications, which was an indication of higher prestige, and were objectively considered better than her new duties; this, in addition to the fact that her new duties were “by all accounts more arduous and dirtier,” supported jury verdict in her favor). Here, however, the difference in prestige is objectively slight, and Billings’s complaints arise largely out of her own subjective feelings of disappointment. See MacCormack, 423 Mass, at 663, 672 N.E.2d l. Furthermore, she did not have more onerous duties in the new position, or indeed very different duties at all. It is true that she was no longer able to handle mail that included highly confidential information concerning legal matters and lawsuits. But she admitted that in her former position she" }, { "docid": "23642479", "title": "", "text": "the filling of either the MM-8 or Deputy Director positions. Therefore, the district court correctly granted summary judgment to the defendants on this claim. B. Retaliation Plaintiffs allege that they have also been subject to retaliation for filing this suit. To sustain a claim of retaliation, plaintiffs must product evidence on three points: (1) they engaged in protected conduct under Title VII; (2) they experienced an adverse employment action; and (3) a causal connection exists between the protected conduct and the adverse action. White v. N.H. Dep’t of Corr., 221 F.3d 254, 262 (1st Cir.2000); Tate v. Dep’t of Mental Health, 419 Mass. 356, 645 N.E.2d 1159, 1165 (1995). It is clear that the plaintiffs engaged in protected conduct when they filed a lawsuit in good faith alleging, inter alia, discrimination on the basis of sex, in violation of both Title VII and Mass. Gen. Laws ch. 151B, § 4(1). 42 U.S.C. § 2000e-3 (identifying protected conduct to include charging, testifying, assisting or participating “in any manner in an investigation, proceeding, or hearing” under Title VII). What is unclear is whether the plaintiffs have introduced evidence showing that they were subjected to adverse employment actions or that any adverse actions were causally related to the filing of their complaint. Plaintiffs point to a whole host of actions which they claim are adverse. To be adverse, an action must materially change the conditions of plaintiffs’ employ. Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996) (“Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.”); MacCormack v. Boston Edison Co., 423 Mass. 652, 672 N.E.2d 1, 7 (1996) (indicating plaintiff must demonstrate “a change in working conditions that materially disadvantaged him” to demonstrate an adverse employment action). Material changes include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.” Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998). Here, plaintiffs complain about" } ]

[ { "docid": "21427032", "title": "", "text": "by the trustee’s complaint. The bankruptcy court gave the parties the opportunity to reach a settlement, off the record, regarding the payment of the sanctions. In so doing, the bankruptcy court instructed the parties that any settlement would be in lieu of a court order and would not be subject to appeal. The trustee did not object to this proposal. During recess, the parties reached a settlement by which the trusteed counsel would pay approximately $11,000 to Shearson. The bankruptcy court entered summary judgment in favor of Shearson, and the judgment stated the parties had resolved the issue of sanctions off the record. Thereafter, the trustee filed a motion under Rule 9023 and Fed.R.Civ.P. 59(e) to alter or amend the summary judgment order to include reference to the imposition of the sanctions. The bankruptcy court concluded the trustee’s motion was frivolous, denied the motion, and imposed additional sanctions on the trustee and his counsel. The Ninth Circuit Bankruptcy Appellate Panel (“BAP”) affirmed the bankruptcy court’s grant of summary judgment on the ground that Section 362(b)(6) allowed Shear-son to liquidate Weisberg’s securities without obtaining relief from the automatic stay. In re Weisberg, 193 B.R. 916, 925 (9th Cir. BAP 1996).- The BAP also concluded that even if Section 362(b)(6) did not apply, it would affirm the grant of summary judgment because the trustee was estopped from alleging damages for the violation of the automatic stay. Id. at 926. The BAP held it had no jurisdiction to review the stipulation between the parties as to the agreed upon sanctions, inasmuch as there was no. appealable final or interlocutory order. Id. at 928. The BAP, however, affirmed the bankruptcy court’s denial of the trustee’s motion to amend or alter the summary judgment and imposition of additional sanctions for filing the motion. Id. at 929. The trustee appeals each of these decisions. DISCUSSION This court independently reviews the BAP’s - decision. We review the BAP’s findings of fact under a clearly erroneous standard and its conclusions of law de novo. See United States v. Battley, 969 F.2d 806, 810 (9th Cir.1992). A. Applicability of" } ]

[ { "docid": "8400052", "title": "", "text": "also did not constitute implementation or enforcement of the BAP’s judgment reversing and remanding for reinstatement of Padilla’s petition. Additionally, it is immaterial that the Trustee failed to obtain a stay pending review since a stay is necessary only to halt actions that a court is empowered to take. Therefore, we hold that the bankruptcy court lacked jurisdiction to proceed with Padilla’s bankruptcy during the pendency of this appeal. The bankruptcy court’s discharge order is therefore null and void, see, e.g., Combined Metals, 557 F.2d at 201 (holding that, because the district court was divested of jurisdiction by the filing of an appeal, the district court’s subsequent order vacating the order under appeal was “a nullity”), and does not render this appeal moot. IV. THE BANKRUPTCY COURT’S DECISION TO DISMISS The BAP held that the bankruptcy court erred in concluding Padilla’s filing constituted bad faith requiring dismissal under § 707(a). This court reviews the BAP’s decision de novo. See Preblich v. Battley, 181 F.3d 1048, 1051 (9th Cir.1999) (stating that review of a district court’s decision on appeal from a bankruptcy court is de novo); Arden v. Motel Partners (In re Arden), 176 F.3d 1226, 1227 (9th Cir.1999) (reviewing the BAP’s decision de novo). In essence, we review de novo whether the bankruptcy court erred in concluding that bad faith is a ground for dismissal under § 707(a). We affirm the BAP’s conclusion that § 707(a) does not apply here. Under § 707(a), a court may dismiss a bankruptcy liquidation petition filed under Chapter 7 of the Bankruptcy Code only after notice and a hearing and only for cause, including — (1) unreasonable delay by the debt- or that is prejudicial to creditors;' (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days ..., the information required by paragraph (1) of section 521, but only on a motion by the United States trustee. 11 U.S.C.A. § 707(a) (West 1993) (italics added). The grounds that § 707(a) lists as providing “cause” for" }, { "docid": "21851360", "title": "", "text": "FERNANDEZ, Circuit Judge: Frank and Margaret Salazar, the debtors in a Chapter 13 bankruptcy proceeding, appeal the decision of the bankruptcy appellate panel which affirmed the bankruptcy court’s determination that Armando and Christine Flores have a priority claim in bankruptcy. We affirm. BACKGROUND The Salazars owned a swimming pool contracting business, and the Floreses hired them to build a pool at the Floreses’ residence. '■ The Floreses agreed to and did pay the full amount of the purchase price — $30,829—at the time that they entered into the contract, and the Salazars commenced work. They never finished the job. By the time they filed for bankruptcy some 17 months later, the project was just 50-70 percent complete. The Floreses, acting pro se, filed an answer to the petition in bankruptcy on March 22, 2002. That was filed within the time for filing a claim, but they did not file a formal proof of claim until later. In their formal proof of claim, the Floreses sought to have their claim treated as secured. The Salazars ultimately objected to the claim, and the bankruptcy court determined that the claim was not secured at all. But, said the court, it was a priority claim to the extent of $2,100. See 11 U.S.C. § 507(a)(6) (consumer deposit). The Salazars appealed that determination, and the BAP affirmed. This appeal followed. JURISDICTION AND STANDARDS OF REVIEW We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review the BAP’s decision de novo. SeeEhrenberg v. Cal. State Univ., Fullerton Found. (In re Beachport Entm’t), 396 F.3d 1083, 1086 (9th Cir. 2005); Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir.2002). More specifically, we review the bankruptcy court’s decision without according any deference to the BAP. See, e.g., Classic Auto Refinishing, Inc. v. Marino (In re Marino), 181 F.3d 1142, 1144(9th Cir.1999). Accordingly, we independently review the bankruptcy court’s rulings. See Miller v. Cardinale (In re DeVille), 361 F.3d 539, 547 (9th Cir.2004); Havelock v. Taxel (In re Pace), 67 F.3d 187, 191 (9th Cir.1995). We review the bankruptcy court’s conclusions of law de novo" }, { "docid": "4384434", "title": "", "text": "Boston Chicken’s plan was approved, ENBC filed a “Request for Payment of Administrative Expense.” ENBC asked for payment of three separate claims, the largest of which was the claim for $1.5 million that alleged Boston Chicken had not used its best efforts to obtain the nondisturbance agreement from Prudential. ENBC asserts that Boston Chicken’s breach caused it uncertainty regarding the continued occupation of its offices, thereby forcing ENBC to incur relocation costs. The bankruptcy court granted summary judgment on the trustee’s objection to ENBC’s claims arising from the sublease. The only issue addressed in the bankruptcy court’s order was whether section 365(d)(3) applied to debtor lessors. The bankruptcy court determined that the plain language of section 365(d)(3) was ambiguous, but that the statute’s legislative history, as well as the overall purpose served by the Bankruptcy Code, favored an interpretation limiting the application of that section to debtor lessees. The bankruptcy court’s final appealable order stated that ENBC was “not entitled to administrative priority under 11 U.S.C. §§ 503(b), 365(d)(3) or any other provision of the Bankruptcy Code.” On appeal, the BAP likewise determined that ENBC’s claim relating to the sublease was not entitled to administrative priority. The BAP upheld the bankruptcy court’s construction of section 365(d)(3) as inapplicable to debtor lessors, and then went on to resolve ENBC’s section 503(b)(1)(A) claim. The BAP determined that ENBC was not entitled to administrative priority under section 503(b)(1)(A) because ENBC had not conferred a substantial benefit on Boston Chicken’s bankruptcy estate. ENBC appeals the BAP’s order. We have jurisdiction pursuant to 28 U.S.C. § 158(d). II We examine the bankruptcy court’s conclusions of law de novo and its factual findings for clear error. Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir.2002). Mixed questions of law and fact are reviewed de novo. See id. Decisions of the BAP are reviewed de novo. Id. We also review de novo the bankruptcy court’s interpretation of the Bankruptcy Code. Id.; see also Staffer v. Predovich (In re Staffer), 306 F.3d 967, 970-71 (9th Cir.2002). Section 365(d)(3) of the Bankruptcy Code provides in pertinent" }, { "docid": "17372640", "title": "", "text": "however, Western amended its proof of claim to assert a secured claim based on Cal.Code Civ. P. § 708.110(d), which provides that, when an ORAP is served on a. judgment debtor, a lien is created on the debtor’s personal property. On October 13, 2010, the chapter 7 trustee, Audrey J. Barris (“Trustee”), filed an objection to Western’s secured claim. Trustee acknowledged that service of the ORAP created a lien against Debtor’s personal property under state law, including its bank account proceeds. However, Trustee asserted that Western’s secured claim should be disallowed pursuant to § 502(d) because Western’s lien constituted an avoidable preference under § 547(b). Western responded to Trustee’s objection by conceding that $370.74 of its secured claim was avoidable and should be disallowed, but arguing that § 547(c)(9) creates an exception to Trustee’s power to avoid the balance of its secured claim in the amount of $5,475. On December 8, 2010, the bankruptcy court conducted a hearing at which it sustained Trustee’s objection to Western’s claim. An order disallowing Western’s secured claim in full was entered on December 10, 2010. Western filed a timely appeal. JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334(b) and 157(b)(2)(B) and (F). The Panel has jurisdiction under 28 U.S.C. § 158. ISSUE Whether the bankruptcy court erred in determining that § 547(c)(9) does not create an exception, to the extent of $5,475, to a trustee’s power to avoid any transfer in a nonconsumer bankruptcy case. STANDARD OF REVIEW We review the bankruptcy court’s interpretation of provisions of the Bankruptcy Code de novo. Smith v. Rojas (In re Smith), 435 B.R. 637, 642-43 (9th Cir. BAP 2010) (citing Mendez v. Salven (In re Mendez), 367 B.R. 109, 113 (9th Cir. BAP 2007)). DISCUSSION I. The language of § 547(c)(9) is clear. If no party in interest objects, a creditor’s proof of claim is deemed allowed. § 502(a); Poonja v. Alleghany Props. (In re Los Gatos Lodge, Inc.), 278 F.3d 890, 893-94 (9th Cir.2002) (quoting Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir.2000)). If an objection is made, a" }, { "docid": "7508829", "title": "", "text": "of the surcharge directly to Debtor’s attorneys rather than to the estate. This distribution “enabled [Debtor’s attorneys] to get paid on a mere administrative claim ahead of Calstar, the holder of a superpriority claim under § 364(c).” Both RFI and Debtor appealed from the BAP’s reversal of the bankruptcy court’s approval of the settlement agreement. STANDARD OF REVIEW This court reviews the bankruptcy court’s approval of a proposed compromise for an abuse of discretion. Burton v. Ulrich (In re Schmitt), 215 B.R. 417, 420 (9th Cir. BAP 1997). However, both the bankruptcy court’s and the BAP’s interpretation of the Bankruptcy Code is reviewed de novo. In re Celebrity Home Entertainment, Inc., 210 F.3d 995, 997 (9th Cir.2000); In re Los Angeles Int’l Airport Hotel Assocs., 106 F.3d 1479, 1480 (9th Cir.1997). To the extent that the bankruptcy court’s approval of the settlement agreement rested on an erroneous interpretation of law, it was, per se, an abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”). The bankruptcy court concluded that RFI could not, as a matter of law, be surcharged under 11 U.S.C. § 506(c). It approved the settlement agreement on this basis. The BAP reached the opposite conclusion. Whether section 506(c) permits Calstar to surcharge RFI is a question of law subject to de novo review. DISCUSSION This case presents two distinct questions arising under Section 506(c) of the Bankruptcy Code, First, we must determine whether Calstar has standing to object to the secured creditor’s settlement agreement with the debtor-in-possession. The agreement foreclosed Calstar from seeking to surcharge the secured collateral of RFI. Following Hartford Underwriters, we hold that Calstar had no standing to seek a surcharge pursuant to § 506(c). Therefore, Calstar cannot object to the agreement which prevented it from bringing a surcharge action. We reverse the BAP decision holding otherwise. In addition, we must determine how the $50,000 in proceeds from the § 506(c) surcharge should be distributed. We hold that under §" }, { "docid": "14760707", "title": "", "text": "BAP also determined that the absolute priority rule was not violated. Accordingly, the BAP affirmed the bankruptcy court’s July 19, 1991 order confirming Johnston’s reorganization plan. II. The bankruptcy court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157. The BAP’s jurisdiction to hear the appeal of the bankruptcy court’s order of July 19, 1991 was under 28 U.S.C. §§ 158(a) and (b)(1). Our jurisdiction over this timely appeal of the BAP’s amended order affirming the order of the bankruptcy court vests pursuant to 28 U.S.C. § 158(d). We review de novo all decisions of bankruptcy appellate panels in eases brought before us pursuant to 28 U.S.C. § 158(d). In re Bonner Mall Partnership, 2 F.3d 899, 903-904 n. 10 (9th Cir.1993), cert. granted, — U.S.-, 114 S.Ct. 681, 126 L.Ed.2d 648 (1994). This is so because both the BAP and the court of appeals apply the same standard of review to the underlying judgment of the bankruptcy court. In re Windmill Farms, Inc., 841 F.2d 1467, 1469 (9th Cir.1988). Consequently, we evaluate the bankruptcy court’s findings of fact under the clearly erroneous standard and review its conclusions of law de novo. Id. III. Steelcase contends that its separate classification under the Johnston plan violates 11 U.S.C. § 1122(a) because its claim is substantially similar to those of other unsecured creditors. The bankruptcy court rejected this claim, finding that Steelease’s separate classification was justified because: (1) Steel-case alone, of all creditors, holds a security in the assets of COS, thereby creating different rights; (2) Steelease’s claim is currently being litigated, which may confer rights separate from all other unsecured creditors, and (3) if Steelcase is entitled to payment as a result of the litigation with Johnston, Steel-case could be fully paid before other unsecured creditors. The BAP, pursuant to its de novo review, affirmed the bankruptcy court’s findings that the classification of Steelease’s claim in Class 23 was proper and in compliance with § 1122(a). A. Before turning our attention to the merits of Steelcase’s argument, we must decide whether the BAP applied the proper standard of" }, { "docid": "22211297", "title": "", "text": "erred in disallowing the amended exemptions. III.STANDARD OF REVIEW The Bankruptcy Appellate Panel reviews legal issues de novo and the bankruptcy court’s factual findings under a clearly erroneous standard. See Village Nurseries v. Gould (In re Baldwin Builders), 232 B.R. 406, 409 (9th Cir. BAP 1999). The bankruptcy court has no discretion to disallow amended exemptions, unless the amendment has been made in bad faith or prejudices third parties. Martinson v. Michael (In re Michael), 163 F.3d 526, 529 (9th Cir.1998); Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982); Magallanes v. Williams (In re Magallanes), 96 B.R. 253, 256 (9th Cir. BAP 1988). Questions regarding the right of a debtor to claim exemptions are questions of law subject to de novo review, whereas the issue of a debtor’s intent is a question of fact reviewed under the clearly erroneous standard. Coughlin v. Cataldo (In re Cataldo), 224 B.R. 426, 428-429 (9th Cir. BAP 1998); Szymanski v. Herzog (In re Szymanski), 189 B.R. 5, 6-7 (N.D.Ill.1995). In this case, the Trustee has not challenged the legal sufficiency or basis of Appellants’ exemptions; rather, he is alleging that their bad faith and prejudicial conduct precludes them from amending their'exemptions when they did. Therefore, any findings by the bankruptcy court on bad faith or prejudice are reviewed for clear error. IV.DISCUSSION A. Jurisdiction A bankruptcy court’s order denying a claim of exemption is a final, appeal-able order. Preblich v. Battley, 181 F.3d 1048, 1055-56 (9th Cir.1999). In Preblich, the exemption claim was denied under substantive state exemption law. In this case, however, the Arnolds’ amendment to their exemptions was disallowed on the grounds of bad faith or prejudice to the creditors. Nevertheless, that order — like an order denying an exemption for reasons based in state exemption law — “finally determines the discrete matter to which it was addressed.” Id. Consequently, the rule set forth by the Ninth Circuit in Preblich applies. The Bankruptcy Appellate Panel has jurisdiction pursuant to 28 U.S.C. § 158(a)(1) and (b). B. Amendments to Bankruptcy Schedules As the Trustee acknowledges, Rule 1009(a) states that" }, { "docid": "17942777", "title": "", "text": "any interest of the Clayton Group and Skousen. Until he intervened, Tilley had never sought to enforce his lien against the property and had never communicated with the Clayton Group. At the conclusion of the trustee’s case, the bankruptcy court granted Skousen’s and the Clayton Group’s oral motion for a directed verdict. The bankruptcy court entered a final judgment dismissing the complaint with prejudice and quieting title to the Clayton Group. The bankruptcy court held that the trustee, B & C, and Tilley could not prevail because the Clayton Group was a good faith purchaser of the pecan groves for value. Additionally, the bankruptcy court held that laches precluded the claims of the trustee, Tilley, and B & C. On November 12,1987, B & C and Tilley, but not the trustee, appealed to the BAP. The BAP affirmed the bankruptcy court’s ruling and held that B & C and Tilley did not have standing to appeal. As an alternate basis for affirming, the BAP held that the bankruptcy court did not abuse its discretion in determining that laches barred the claims of B & C and Tilley. STANDARD OF REVIEW We review decisions of the Bankruptcy Appellate Panel de novo. Romley v. Sun Nat’l Bank (In re Two “S\" Corp.), 875 F.2d 240, 242 (9th Cir.1989). We review the bankruptcy court’s findings of fact under a clearly erroneous standard and its conclusions of law de novo. Griffel v. Murphy (In re Wegner), 839 F.2d 533, 536 (9th Cir.1988). DISCUSSION Skousen argues that B & C and Tilley do not have standing to attack violations of the stay because they are merely creditors, and not the debtor or the trustee. We agree and affirm the decision of the bankruptcy court. A. Standing as Creditors Where the original party to a lawsuit decides not to appeal (here, the trustee), the intervenor must have independent standing to appeal. Diamond v. Charles, 476 U.S. 54, 68-69, 106 S.Ct. 1697, 1706-07, 90 L.Ed.2d 48 (1986). “Only those persons who are directly and adversely affected pecuniarily by an order of the bankruptcy court have been held" }, { "docid": "17791170", "title": "", "text": "T.G. NELSON, Circuit Judge: Steven L. Weiner, a Chapter 7 debtor, appeals the Bankruptcy Appellate Panel’s (“BAP’s”) affirmance of the bankruptcy .court’s order denying him a discharge under 11 U.S.C. § 727(a)(4)(A). We have jurisdiction under 28 U.S.C. § 158(d). Because we hold that the bankruptcy court abused its discretion when it entered the order denying the discharge, we reverse. I. Steven Weiner, an attorney who specializes in personal injury litigation, filed a Chapter 11 voluntary bankruptcy petition in June 1990, which he subsequently converted to Chapter 7 in April 1991. On his Schedule B-2, Personal Property, Weiner listed, among other things, “jewelry, wedding rings, etc.” valued at $2,500. Perry, Settles & Lawson, Inc. (“Perry”), a creditor of Weiner, filed an adversary proceeding seeking denial of a general discharge under 11 U.S.C. § 727(a)(4)(A). The § 727 claim alleged, among other things, that Weiner had made a false oath in the valuation of his personal property, specifically, a “wedding” ring. After holding a bench trial, the bankruptcy court issued an oral ruling denying Weiner a general discharge under § 727 based on its finding that he made a false oath as to the value of the ring. At the hearing, the bankruptcy court was told that the trustee had hired an appraiser to value the jewelry. Several months later, Weiner moved the court to reconsider its oral ruling or for a new trial in light of the trustee-ordered appraisal that valued the ring for less than the $2,500 value Weiner had listed on the schedule. The bankruptcy court denied the motion. The bankruptcy court later entered a written order denying Weiner a general discharge under 11 U.S.C. § 727(a)(4)(A). The bankruptcy court’s denial of a general discharge was affirmed on appeal to the BAP. Weiner timely appeals to this court. II. We review the bankruptcy court’s orders independently of the BAP’s decision. In re Saylor, 108 F.3d 219, 220 (9th Cir.1997). We review the bankruptcy court’s denial of a motion for reconsideration for an abuse of discretion. See In re Donovan, 871 F.2d 807, 808 (9th Cir.1989). The bankruptcy court’s" }, { "docid": "14118471", "title": "", "text": "At that juncture, the trustee moved to reopen the bankruptcy case. The bankruptcy court granted the motion and, over City’s strenuous objection, authorized the trustee to take over the claims against Allied. The court reasoned that the claims were commercial tort claims, that they belonged to the estate, and that the trustee had exclusive standing to pursue them. In re Am. Cartage, Inc., No. 03-44308, 2009 WL 4780972, at *4-6 (Bankr.D.Mass. Dec. 11, 2009). With City continuing to object, the court then approved the trustee’s proposal to settle the claims for $12,000. Id. at *7-8. City took a first-tier appeal to the district court, which affirmed the bankruptcy court’s orders. See City Sanit., LLC v. Burdick (In re Am. Cartage, Inc.), 438 B.R. 1 (D.Mass.2010). This timely appeal ensued. II. ANALYSIS In bankruptcy cases, Congress has fashioned a two-tiered framework for appellate review as of right. Under this framework, litigants in the ordinary case must first appeal to the district court (or, in some circuits, a bankruptcy appellate panel). See 28 U.S.C. § 158(a)-(b); Brandt v. Repco Printers & Lithographies, Inc. (In re Healthco Int’l, Inc.), 132 F.3d 104, 107 (1st Cir.1997). The courts of appeals are then available as a second tier of appellate review. See 28 U.S.C. § 158(d)(1); Stomawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir.2009). Despite this sequencing, we cede no special deference to the determinations made by the first-tier tribunal (whether a district court or a bankruptcy appellate panel), but assess the bankruptcy court’s decision directly. Gannett v. Carp (In re Carp), 340 F.3d 15, 21 (1st Cir.2003). In that process, we review findings of fact for clear error and conclusions of law de novo. Groman v. Watman (In re Watman), 301 F.3d 3, 7 (1st Cir.2002). In this second-tier appeal, City asseverates that it had standing to prosecute the claims against Allied and that, in all events, the settlement negotiated by the trustee should have been rejected. We address these contentions separately. A. The Disputed Claims. City argues that the claims against Allied are proceeds of the collateral" }, { "docid": "21196054", "title": "", "text": "in full. (Paper 6, Ex. 2). Creditors have appealed the bankruptcy court’s Order. II. Standard of Review On appeal from the bankruptcy court, the district court acts as an appellate court and reviews the bankruptcy court's findings of fact for clear error and conclusions of law de novo. See In re Official Comm. of Unsecured for Dornier Aviation (N. Am.), Inc., 453 F.3d 225, 231 (4th Cir.2006) (citing In re Johnson, 960 F.2d 396, 399 (4th Cir.1992)); In re Bryson Props., XVIII, 961 F.2d 496, 499 (4th Cir.), cert. denied, 506 U.S. 866, 113 S.Ct. 191, 121 L.Ed.2d 134 (1992). III. Standing Debtor argues that Creditors lack standing to challenge the bankruptcy court’s Order. “The test for standing to appeal a bankruptcy court’s order to the district court is well-established: the appellant must be a person aggrieved by the bankruptcy order.... Likewise, it is well-established that a person aggrieved is ‘a party “directly and adversely affected pe-cuniarily.” ’ ” White v. Univision of Va., Inc. (In re Urban Broadcasting Corp.), 401 F.3d 236, 243-44 (4th Cir.) (quoting United States Tr. v. Clark (In re Clark), 927 F.2d 793, 795 (4th Cir.1991) (quoting Fondiller v. Robertson (In re Fondiller), 707 F.2d 441, 442 (9th Cir.1983))), cert. denied, 546 U.S. 872, 126 S.Ct. 379, 163 L.Ed.2d 165 (2005). Although a bankruptcy estate’s creditors are not directly and adversely affected pecuniarily by any order affecting the bankruptcy estate, a creditor “ha[s] a direct pecuniary interest in a bankruptcy court’s order transferring assets of the estate.” Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 778 (9th Cir.1999), cited in 1 Collier On Bankruptcy ¶ 5.06 (15th ed. rev.2006). Creditors have each asserted claims against the bankruptcy estate of Minh-Vu Hoang. Pursuant to the Settlement Agreement, Debtor’s assets were transferred into the Minh-Vu Hoang bankruptcy estate, and will be available to the trustee of that bankruptcy estate for payment to creditors. The Settlement Agreement and the associated addendum to that agreement, however, also provide that any attorney’s fees approved by the bankruptcy court in Debtor’s case are to be" }, { "docid": "20252134", "title": "", "text": "FOGEL, District Judge: Bankruptcy debtor Eyad Khalil (“Khal-il”) appeals a published decision of the Bankruptcy Appellate Panel (BAP), which affirmed a judgment of the bankruptcy court in favor of creditor Developers Surety and Indemnity Company (“DSI”). See Khalil v. Developers Sur. & Indem. Co. (In re Khalil), 379 B.R. 163 (9th Cir. BAP 2007). We have jurisdiction under 28 U.S.C. § 158(d), and we affirm. We review decisions of the BAP de novo. Hanf v. Summers (In re Summers), 332 F.3d 1240, 1242 (9th Cir.2003). We review the bankruptcy court’s conclusions of law de novo and its findings of fact for clear error. Id. DSI brought an adversary proceeding to prevent the discharge of certain debts related to Khalil’s construction business. After a bench trial before the bankruptcy court, judgment was entered in favor of DSI and discharge was denied pursuant to 11 U.S.C. § 727(a)(4), which provides for the denial of a discharge of debt where a creditor shows that a debtor “knowingly and fraudulently” made a false oath or account during the bankruptcy proceeding. The BAP affirmed, holding that while evidence of recklessness alone will not satisfy the intent requirement of § 727(a)(4), evidence of recklessness may be combined with other circumstantial evidence to prove fraudulent intent. Khalil, 379 B.R. at 177. The BAP’s published opinion is a correct statement of the applicable law, and we expressly approve of that opinion by our decision today. We also have reviewed the record independently and conclude that there was substantial circumstantial evidence of Khalil’s fraudu lent intent. Fraudulent intent may be inferred from a pattern of behavior. Devers v. Sheridan (In re Devers), 759 F.2d 751, 754 (9th Cir.1985). The denial of discharge was proper. AFFIRMED." }, { "docid": "12162018", "title": "", "text": "own benefit ... [but] for the benefit of the estate” and “agree[d] to advance the fees and costs attendant to the prosecution of the Complaint.” On July 10, 2006, the bankruptcy court held a telephonic hearing on PW Enterprises’ motion and denied it on August 7, 2006. The bankruptcy court concluded that PW Enterprises did not have standing to pursue an adversary action against the State because it failed to establish that the Trustee abused his discretion or acted unjustifiably by failing to pursue the avoidance claims. The bankruptcy court did not address PW Enterprises’ contention that a creditor may proceed derivatively if the trustee consents to, or does not oppose, the action. The Bankruptcy Appellate Panel (“BAP”) affirmed the bankruptcy court’s decision denying PW Enterprises’ motion. The BAP declined to resolve the issue of whether derivative standing was appropriate when a trustee consents. Rather, the BAP concluded that the bankruptcy court properly denied PW Enterprises derivative standing because it did not first seek permission with the bankruptcy court to file its complaint. See In re Racing Servs., Inc., 363 B.R. at 916-17. On appeal, PW Enterprises argues that the bankruptcy court erred by holding that a creditor may proceed derivatively only when the trustee acts improperly or abuses his discretion. While neither defending nor declaiming the bankruptcy court’s rationale, the State argues that it properly denied PW Enterprises standing because its motion was untimely, i.e., PW Enterprises sought derivative standing only after filing its complaint. II We apply the same standard of review as the BAP. We review the bank ruptcy court’s findings of fact for clear error and its legal conclusions de novo. See Blackwell v. Lurie (In re Popkin & Stern), 223 F.3d 764, 765 (8th Cir.2000). We review the bankruptcy court’s order denying PW Enterprises standing, as a matter of law, de novo. See, e.g., Hartford Underwriters Ins. Co. v. Magna Bank, N.A. (In re Hen House Interstate, Inc.), 177 F.3d 719, 721 (8th Cir.1999), aff'd sub nom. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 120 S.Ct. 1942, 147 L.Ed.2d 1" }, { "docid": "17915942", "title": "", "text": "district court addressed the issue of standing. We conclude herein that the Creditors had standing but that they were barred from bringing the suit by the statute of limitations. II. Defendants argue that the Creditors have no standing to sue because only the Chapter 7 trustee has authority to bring adversary proceedings under 11 U.S.C. §§ 544(b), 547, 548 and 549(a). The district court did not address the issue of standing because the statute of limitations issue was the only one certified by the bankruptcy court for appeal. Even so, we must address the issue of standing because “Article III standing is a jurisdictional prerequisite.” Maricopa-Stanfield Irrigation and Drainage District v. United States, 158 F.3d 428, 433 (9th Cir.1998). Daff stipulated on July 27, 1995 that the Creditors were authorized to pursue their claims in his stead. In relevant part, the stipulation states: “It is hereby stipulated and agreed ... that [the Creditors] are and were authorized to file an adversary complaint in the above referenced action on or about May 25, 1995.” The stipulation further provides: “[t]he complaint ... is acknowledged and agreed to have been brought on behalf of the estate although nominally on behalf of the named plaintiffs in lieu of the trustee. The Trustee authorizes the complaint to be amended if necessary to have the Trustee as a named party-plaintiff if procedurally required.” On August 3, 1995, the bankruptcy court entered an order granting the stipulation. On September 25, 1995, the Creditors and Daff filed an amended complaint that added Daff as a plaintiff but stated the same claims. Although Defendants are correct that a trustee must generally file an avoidance action under Chapter 7, we hold that under these particular circumstances — where the trustee stipulated that the Creditors could sue on his behalf and the bankruptcy court approved that stipulation — the Creditors had standing to bring the suit. See In re Curry and Sorensen, 57 B.R. 824, 828 (9th Cir. BAP 1986) (“[t]he exclusive power to commence avoidance actions vested in trustees and debtors-in possession is permissive rather than mandatory ... [T]he creditor" }, { "docid": "14880298", "title": "", "text": "OPINION MORGENSTERN-CLARREN, Bankruptcy Judge. This appeal addresses an obscure area of the Bankruptcy Code: the rights of creditors when a reorganized Chapter 11 debtor defaults under a confirmed plan and the case is converted to Chapter 7. Here, after just such a default, the bankruptcy court granted a creditor’s motion to convert to Chapter 7. While that case was pending, other creditors filed an involuntary Chapter 7 petition against the reorganized Chapter 11 debtor based on the failure to pay their plan claims. The court dismissed the petition on the ground that Bankruptcy Code § 348 limits those creditors to asserting their plan claims in the converted case and precludes them from asserting claims against the reorganized debtor. A petitioning creditor appeals. Because we hold that the creditors are entitled to assert the plan claims against the reorganized debtor, the dismissal of the involuntary petition is VACATED and the case is REMANDED for further proceedings. I.ISSUES ON APPEAL The two issues raised are: (1) whether appellant National City Bank, one of the petitioning creditors, has standing to appeal without the other petitioning creditors; and (2) whether the bankruptcy court properly determined as a matter of law that the petitioning creditors are not eligible to commence an involuntary proceeding against the reorganized debtor. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the BAP and the order dismissing the involuntary petition is a final order that may be appealed by right under 28 U.S.C. § 158(a)(1). Booher Enters. v. Eastown Auto Co. (In re Eastown Auto Co.), 215 B.R. 960 (6th Cir. BAP 1998). The bankruptcy court’s interpretation of the Bankruptcy Code is reviewed de novo. In re Koenig Sporting Goods, Inc., 203 F.3d 986 (6th Cir.2000). III.FACTS Troutman Enterprises, Inc. filed a Chapter 11 case on April 23, 1992. In 1993, the bankruptcy court entered an order confirming the .debtor’s amended plan of reorganization. When the reorganized debtor (“Reorganized Debtor”) defaulted on its obligations under" }, { "docid": "657481", "title": "", "text": "acting as debtors-in-possession. The court denied the Fursmans’ motion by order entered on March 31, 2010, finding that the trustee’s avoiding power under § 549 was not affected by the conversion of their case. On March 29, 2010, the Defendants filed a timely Notice of Appeal (“NOA”), which was not signed by Thompson. They subsequently moved for a stay pending appeal which the bankruptcy court denied. II. JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. § 1334 over this core proceeding under § 157(b)(2)(A) and (E). We have jurisdiction under 28 U.S.C. § 158(a). III. ISSUES A. Whether the Fursmans have standing to appeal the bankruptcy court’s judgment; B. Whether the NOA and appellate briefs filed and signed by the Fursmans on behalf of all Defendants was effective as to Thompson; and C. Whether the bankruptcy court erred in granting the trustee’s motion for summary judgment. IY. STANDARDS OF REVIEW We review questions of law that involve jurisdiction and standing de novo. United States v. Garrett, 253 F.3d 443, 446 (9th Cir.2001); Menk v. LaPaglia (In re Menk), 241 B.R. 896, 903 (9th Cir. BAP 1999). We review de novo the bankruptcy court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists and whether the bankruptcy court correctly applied the relevant substantive law. Christensen v. Yolo Cnty. Bd. of Supervisors, 995 F.2d 161, 163 (9th Cir.1993). We also review de novo whether property is property of the estate. Cisneros v. Kim (In re Kim), 257 B.R. 680, 684 (9th Cir. BAP 2000). V. DISCUSSION A. Preliminary Issues Before addressing the merits, the trustee presents threshold issues concerning the propriety of this appeal. The trustee maintains that the Furs-mans lack standing to appeal the judgment avoiding the transfer because Thompson, as the transferee, is the “person aggrieved.” See Debbie Reynolds Hotel & Casino, Inc. v. Calstar Corp. (In re Debbie Reynolds Hotel & Casino, Inc.), 255 F.3d 1061, 1066 (9th Cir.2001) (“Only a party who is ‘directly and adversely affected pe-cuniarily’ by an" }, { "docid": "1551258", "title": "", "text": "PER CURIAM: We consider whether Chapter 12 of the bankruptcy code authorizes a debtor to make payments directly to creditors with claims modified by a plan of reorganization in order to avoid paying the bankruptcy trustee the statutory fee under 28 U.S.C. § 586. We hold that such fee avoidance is not authorized by statute. John McGregor Fulkrod appeals a decision of the Bankruptcy Appellate Panel (“BAP”) affirming an order of the bankruptcy court prohibiting direct payments to impaired creditors. We have jurisdiction pursuant to 28 U.S.C. § 158(d) and we affirm. I Fulkrod filed a plan of reorganization in the bankruptcy court under Chapter 12. The plan provided, in part, that Fulkrod would make payments directly to three creditors with impaired claims. The bankruptcy court refused Fulkrod’s request and ordered that payments to the three creditors be made “through the standing trustee and [the trustee] is entitled to his statutory fee thereon.” The BAP affirmed and this appeal followed. We review decisions of the BAP de novo. In re Two S Corp., 875 F.2d 240, 242 (9th Cir.1989). We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. In re Rubin, 875 F.2d 755, 758 (9th Cir. 1989). II We begin our analysis with the unremarkable proposition that, in interpreting the relevant statutes, we should avoid a construction that renders superfluous the trustee fee provision or, for that matter, the trustee himself. See Central Mont. Elec. Power Co-op., Inc. v. Administrator, Bonneville Power Admin., 840 F.2d 1472, 1478 (9th Cir.1988) (avoiding statutory interpretation that rendered section superfluous); Hughes Air Corp. v. Public Util. Comm’n, 644 F.2d 1334, 1338 (9th Cir.1981) (avoiding construction that rendered statute meaningless). Congress clearly intended that the trustee in bankruptcy play a significant role in the administration of estates under Chapter 12. Under 11 U.S.C. § 1202, the trustee is required to account for property received, ensure that the debtor makes timely payments, examine proof of claims, oversee the discharge of the debtor, furnish information concerning the estate, make a final report and accounting, appear at hearings" }, { "docid": "14880299", "title": "", "text": "standing to appeal without the other petitioning creditors; and (2) whether the bankruptcy court properly determined as a matter of law that the petitioning creditors are not eligible to commence an involuntary proceeding against the reorganized debtor. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the BAP and the order dismissing the involuntary petition is a final order that may be appealed by right under 28 U.S.C. § 158(a)(1). Booher Enters. v. Eastown Auto Co. (In re Eastown Auto Co.), 215 B.R. 960 (6th Cir. BAP 1998). The bankruptcy court’s interpretation of the Bankruptcy Code is reviewed de novo. In re Koenig Sporting Goods, Inc., 203 F.3d 986 (6th Cir.2000). III.FACTS Troutman Enterprises, Inc. filed a Chapter 11 case on April 23, 1992. In 1993, the bankruptcy court entered an order confirming the .debtor’s amended plan of reorganization. When the reorganized debtor (“Reorganized Debtor”) defaulted on its obligations under the plan, a creditor moved to convert the Chapter 11 case to Chapter 7. The bankruptcy court granted the unopposed motion in 1996 and that case is still pending (the “Converted Case”). In 1999, four other creditors (the “Petitioning Creditors”) filed an involuntary Chapter 7 case against the Reorganized Debtor. They based this filing on the Reorganized Debtor’s failure to pay their claims under the terms of the confirmed plan (the “Plan Claims”). The Reorganized Debtor moved to dismiss the petition on the ground, among others, that the Petitioning Creditors did not hold claims against it after the conversion. The bankruptcy court granted the motion, holding that the creditors are limited to asserting the Plan Claims in the Converted Case by operation of Bankruptcy Code § 348(d). In re Troutman Enters., Inc., 244 B.R. 106 (Bankr.S.D.Ohio 2000). National City Bank, one of the Petitioning Creditors, filed this appeal. IV.DISCUSSION A. Standing The Reorganized Debtor contends that National City Bank does not have standing to prosecute this appeal because the other Petitioning Creditors are not participating." }, { "docid": "22471883", "title": "", "text": "paying $45,000 for the claims, the third party purchaser would pay the estate fifteen percent of any monies collected on those claims. He also noted that the settlement was essentially a sale of an asset: selling a claim for $40,000, without the estate receiving anything else of value, such as a release of known and described claims against the estate. After hearing the arguments of the various parties, the court approved the Motion. The court ruled that the proposed $5,000 overbid was not substantial enough to affect the best interests of creditors and that the evidence of willingness to pursue an auction process with an initial overbid of $5,000 was not sufficient to warrant substitution of the court’s judgment for the business judgment of Trustee. The court did not attempt to evaluate the proposed overbidder’s additional offer to pay the estate fifteen percent of any recovery from the Settling Parties. The bankruptcy court entered its order granting the Motion on July 30, 2002. Appellant filed a timely notice of appeal on August 7, 2002. II. ISSUE Did the bankruptcy court abuse its discretion in approving Trustee’s settlement with the Settling Parties pursuant to Rule 9019? III. STANDARD OF REVIEW The bankruptcy court’s decision to approve a compromise is reviewed for abuse of discretion. Martin v. Kane (In re A & C Props.), 784 F.2d 1377, 1380 (9th Cir.), cert. denied, 479 U.S. 854, 107 S.Ct. 189, 93 L.Ed.2d 122 (1986); CAM/RPC Elees, v. Robertson (In re MGS Mktg.), 111 B.R. 264, 266-67 (9th Cir. BAP 1990). Under the abuse of discretion standard, we cannot reverse the bankruptcy court’s ruling unless we have a definite and firm conviction that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Marx v. Loral Corp., 87 F.3d 1049,1054 (9th Cir.1996). IV. DISCUSSION A. Trustee’s Standing We question sua sponte Trustee’s standing because he does not appear to have been appointed formally as trustee upon the reopening of the case in 2002. As we have previously explained, the closing of a case terminates the" }, { "docid": "23544498", "title": "", "text": "OPINION MEYERS, Bankruptcy Judge. I The bankruptcy court for the District of Alaska refused to appoint a New York resident as Chapter 7 trustee, on the basis that he did not have an office in Alaska. Several creditors appeal this ruling. We AFFIRM. II FACTS On December 19, 1993, Martech USA, Inc. filed a Chapter 11 bankruptcy petition. The case was converted to Chapter 7 on December 21, 1994. Kenneth W. Battley, a panel trustee for the District of Alaska, was appointed interim Chapter 7 trustee on December 22,1994. At the meeting of creditors held on January 19, 1995, an election for a permanent trustee was conducted. Joseph Pardo received the majority of the votes, including those of appellants J.P. Morgan Investment Management, Inc., Smith Barney Shearson and Grace Brothers, Inc. (collectively the “Appellants”). Several creditors voted for Battley. The United States Trustee filed a motion for resolution of the disputed election and filed a report with the bankruptcy court pursuant to Fed.R.Bankr.P. 2003(d). The court held that Pardo did not have an office in the District of Alaska within the meaning of Bankruptcy Code (“Code”) Section 321 and appointed Battley as permanent trustee. The Appellants filed a notice of appeal and a motion for stay pending appeal. The bankruptcy court granted the motion, appointing Battley as interim trustee, rather than permanent trustee, until the appeal was resolved. The Appellants, the United States Trustee and Battley filed appellate briefs. III STANDARD OF REVIEW Jurisdiction is a question of law reviewed de novo. In re Lawson, 156 B.R. 43, 45 (9th Cir. BAP 1993). Where the bankruptcy court has exercised some supervisory powers over the election of a trustee, its actions should be examined to determine whether it has abused its discretion. In re Oxborrow, 913 F.2d 751, 754 (9th Cir.1990). A court which relies upon an erroneous interpretation of law abuses its discretion. In re Davis, 177 B.R. 907, 913 (9th Cir. BAP 1995). IV DISCUSSION A. Whether the Order is Final Battley contends that the Panel lacks jurisdiction to decide this appeal because the order appointing him trustee is" } ]

[ { "docid": "6518653", "title": "", "text": "the use value of company-owned equipment. As to this the plaintiff neglected to comply with pretrial instructions relative to production of supporting data for pretrial verification, and when the material was offered at trial it was admitted only as an offer of proof, too late for consideration. Other parts of the total $30,732.51 in rejected cost claims were not proven at trial either because their appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else, or because suppliers’ discounts earned by plaintiff are not allowable as costs of performance, or because an allocation of home office overhead to the contract in suit is of no probative value if no basis for the allocation is shown. Even so, proof that the plaintiff’s costs thus diminished exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference. Having concluded that plaintiff is not entitled to recover except for the balance of $2,722.99 admittedly due on the contract, we shall now consider three counterclaims which have been asserted by defendant against plaintiff and the third-party defendant, Great American Insurance Company, which, was the surety on plaintiff’s performance bond to the extent of $15,860. JTRST COUNTERCLAIM — EXTRA SALARY PAID TO DEFENDANT’S CONSTRUCTION REPRESENTATIVE The parties stipulated that from the original contract completion date of July 28,1959, to its actual completion on January 12,1960, defendant paid its construction representative, Mr. Howard, the sum of $3,454.66 for 766 hours spent on the job. Plaintiff denies liability for any portion of the salary, but defendant claims the right to recover that amount by virtue of the provisions of the Termination for Default article of the contract which read in part as follows: If the Government does not terminate the right of the Contractor to proceed, as provided in paragraph (a) hereof, the Contractor shall continue the work, in which event he and his sureties shall be liable to the Government, in the amount set forth in the specifications or accompanying papers, for fixed, agreed, and liquidated damages" } ]

[ { "docid": "23431614", "title": "", "text": "where the contractor itself, as in that case, was claiming that the price it had paid was not “reasonable”, in the sense that it was below fair market value, so that “there is an alleged disparity between ‘historical’ and ‘reasonable’ costs, the historical costs are presumed reasonable,” and “the burden would then be upon claimant to overcome the presumption of reasonableness.” Id., 324 F.2d at 519, 163 Ct.Cl. at 101-102. That the court does not construe such a “historical cost” presumption of reasonableness in an equitable adjustment situation, such as was involved in Bruce where the contractor was itself attempting to reject the reasonableness of its own costs, as carrying over in full force to a “total cost” damage contention is made evident by the cases of WRB Corp., et al. v. United States, supra; Turnbull, Inc. et al. v. United States, supra; Phillips Construction Co. v. United States, supra; Urban Plumbing & Heating Co. v. United States, supra; and Wunderlich Contracting Co. et al. v. United States, supra, all decided subsequent to Bruce, all rejecting the “total cost” method, and all reiterating or quoting with approval said of-cited statement from F. H. McGraw & Co., supra, which plaintiff argues was superseded by Bruce. For instance, in WRB Corp., the court stated: “This theory has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated. [Citations omitted.] The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable ; and (4) it was not responsible for the added expenses.” And the court went on to state that it was not satisfied “that plaintiff sufficiently proved the reasonableness of its estimates or its actual costs.” [Emphasis supplied.] 183 Ct.Cl. at 426. Thus, the court made clear that in such a case, the contractor’s obligation of carrying its burden of" }, { "docid": "19999243", "title": "", "text": "Finally, since plaintiff has failed to establish a materially-different site condition with respect to rock, supra, the conclusion is inescapable that it cannot establish the sixth element, i.e., that its excess cost stems solely from the materially-different subsurface condition. (b) TYPE II — DIFFERING SITE CONDITION Previously, we observed that plaintiff’s claim with respect to the rock encounter averred both a Type I and a Type II differing site condition. In light of the court’s ruling that plaintiff failed to carry its burden with respect to a Type I differing site condition, we now address plaintiff’s contention that the encountered rock when compared with contract indications constitutes a Type II differing site condition. Our reading of the relevant and binding case law leads us to conclude that, in order for the plaintiff to prove a Type II differing site condition, a combination of two of three indispensable elements must be established, namely, that (i) the physical condition at the site was unknown; or (ii) said condition was unusual and could not be reasonably anticipated by the contractor from his study of the contract documents, his inspection of the site, and his genera] experience, if any, in the contract area; and (iii) the condition encountered was materially different from those ordinarily encountered and generally recognized as inhering in the work of this character. Servidone, 19 Cl.Ct. at 360; Perini, 180 Ct.Cl. at 780, 381 F.2d 403. See generally Loftis, 110 Ct.Cl. at 618, 76 F.Supp. 816; Lathan Company, Inc. v. United States, 20 Cl.Ct. 122 (1990); S.T.G. Construction Co. v. United States, 157 Ct.Cl. 409, 415 (1962). In other words, to prevail on this issue, plaintiff must prove, by a preponderance of the evidence, either elements # 1 and # 3 or elements # 2 and # 3. In reviewing the record with respect to the Type II claim, the court finds that not only does the defendant fail to even address the claim, but also the plaintiff merely addresses the claim in a highly conclusory argumentative manner. That is to say, plaintiff points to no probative evidence in the record," }, { "docid": "23431617", "title": "", "text": "verdict” award, it has rendered a judgment based on such a verdict. WRB Corp., et al. v. United States, supra, 183 Ct.Cl. at 425-426. Cf. Phillips Construction Co. v. United States, supra, 394 F.2d at 842, 184 Ct.Cl. at 263. However, where the record is blank with respect to any such other alternative evidence, the court has been obliged to dismiss the claim for failure of damage proof, regardless of the merits. Roberts v. United States, supra, 357 F.2d at 943-944, 174 Ct.Cl. at 946, 949; Snyder-Lynch Motors, Inc. v. United States, supra, 292 F.2d at 910, 154 Ct.Cl. at 480; Wunderlich Contracting Co. et al. v. United States, supra, 351 F.2d at 964-965, 173 Ct.Cl. at 192-193. Cf. River Construction Corp. v. United States, supra, 159 Ct.Cl. at 259. The instant case falls in the latter category. Accordingly, plaintiff’s three causes of action based upon the Modulator contract must be dismissed. THE INTERVAL AND DWELL TESTER CONTRACT CLAIMS Fourth Cause of Action Paragraph (a) of Part II of the contract Schedule, which part was headed “First Article Inspection,” required that, as a “First Article,” one tester “shall be tested to determine compliance with the applicable specifications”; that “[a] 11 testing of the First Article shall be performed at the Contractor’s or at a commercial testing laboratory”; that the “ ‘test set up’ to be used in First Article testing, including wiring diagram, shall be submitted to the Project Engineer before the First Article is tested”; that the tests be witnessed by an Air Force inspector; that the contractor should prepare the test results in report form and submit them to defendant “for evaluation and approval”; and that after satisfactory completion of the tests and the submission of the test data, “the said First Article shall then be forwarded” to defendant “for engineering evaluation and approval.” Paragraphs (d) and (f) of such part further provided, respectively, that “[p] ending approval of the said First Article, the remaining articles of the said item shall not be fabricated, produced, or shipped,\" and that “[a]t least fifteen (15) days prior to the start" }, { "docid": "14405628", "title": "", "text": "contracting officer took defendant’s counterclaim into consideration when rendering the final decision on plaintiffs original claim. In making this determination, we are mindful of the principle that the contracting officer’s decision is the “linchpin” for judicial review of contract claims under the CDA. Paragon Energy Corp. v. United States, 645 F.2d 966, 967, 227 Ct.Cl. 176 (1981), aff'd, 230 Ct.Cl. 884, 1982 WL 25259 (1982), cited with approval in McDonnell Douglas Corp. v. United States, 754 F.2d 365, 370 (Fed.Cir.1985). Seeking an exception to this principle, defendant relies mainly on Placeway Constr. Corp. v. United States, 920 F.2d 903 (Fed. Cir.1990), affg in part and vacating in part 18 Cl.Ct. 159 (1989), wherein the Federal Circuit held that, following submission of a contractor’s claim to the contracting officer pursuant to the CDA, the Government’s assertion of an unliquidated set-off likewise constitutes a “claim” under the CDA. Place-way, 920 F.2d at 906. By denying the contractor’s direct claim, the Federal Circuit reasoned, the contracting officer effectively makes a final decision on the Government’s claimed set-off, even though the contracting officer issues no distinct, formal written decision on the claimed set-off and reserves the power to redetermine the precise amount of the set-off in the future. Id. Notwithstanding the foregoing, we find that defendant’s counterclaim in the case at bar is factually distinguishable from the Government set-off at issue in Placeway. In Placeway, the plaintiff submitted various claims to the contracting officer for decision, including a claim in the amount of $297,226.12 for the balance alleged to be due on the contract price. Placeway, 18 Cl.Ct. at 161. The contracting officer denied the plaintiffs claims because the Government intended to set off claims it anticipated receiving from contractors on other projects that had allegedly suffered delays as a result of plaintiffs delay in performing its contract. Id. By way of distinction, in the present case plaintiff does not appeal a contracting officer’s decision allowing a Government set-off against the contract price. Rather, defendant brings a counterclaim seeking to overturn the contracting officer’s decision increasing the contract price by the sum of $11,208." }, { "docid": "7681195", "title": "", "text": "“breach” claims against the United States where the plaintiff seeks compensation for delay in payment. The demand here is not based upon a “breach” but upon a change compensable under the “Changes” article which entitles the contractor to reimbursement for the resulting “increase * * * in the cost of performance of this contract.” Extra interest on the borrowed money became due from Rainier because of the slowdown, and under generally accepted principles was undoubtedly an increased cost of contract performance attributable to the change. The “Changes” article thus contemplated that increased interest costs on borrowed money could be “in the very same category as more tangible costs of construction.” See Phillips Constr. Co., Inc. v. United States, 179 Ct.Cl. 54, 58, 374 F.2d 538, 540 (1967) (interpreting construction contract under the. Capehart Housing Act). Conversely, the amounts sought by these plaintiffs are not compensation for the Government’s delay in making payment, as in Ramsey v. United States, 121 Ct.Cl. 426, 431-433, 101 F.Supp. 353, 355-357 (1951), cert. denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952), and Komatsu Mfg. Co., Ltd. v. United States, 132 Ct.Cl. 314, 131 F.Supp. 949 (1955), where in “breach” cases the claimants had to borrow money because the Government did not timely pay them sums due and owing. Plaintiffs ask us to hold that their interest computation ($3,236.83) is the only permissible one on the record, but this calculation involves assumptions disputed by the defendant whose auditor reached a lower figure. Here, too, we cannot say that only the contractor’s conclusion is acceptable. The Board will have to make the determination, either on the present record or after further evidence is produced. For these reasons, we hold that the contractor was entitled to an equitable adjustment under the “Changes” article and that the Armed Services Board of Contract Appeals erred in holding otherwise. The proceedings here will have to be suspended for 90 days to allow the parties to return to the Board for a determination of the amount of the equitable adjustment, in accordance with this opinion. CONCLUSION OF LAW On" }, { "docid": "20646282", "title": "", "text": "* *. That did not prove defendant’s responsibility for those costs nor their reasonableness.” And in Roberts v. United States, supra, 174 Ct. Cl. at 949, 357 F. 2d at 944-45, the court again noted “* * * their [plaintiff’s costs] appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else ****** [p]roof that the plaintiff’s costs * * * exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference.” It is true, as plaintiff points out, that a calculation of a contractor’s total expenditure in the performance of his contract has been used in a few cases as the basis for a determination of his damages or increased costs resulting from some act of the defendant. However, an examination of each such case in this court demonstrates that in none of them did the damage proof relied on consist, as it does here, only of a single subtraction of contract receipts from total expenditures. In all of them, the total cost computation was used as “only a starting point” (River Construction Corp. v. United States, supra, at 271), with such adjustments thereafter made in such computation as allowances for various factors as to convince the court that the ultimate, reduced, figure fairly represented the increased costs the contractor directly suffered from the particular action of defendant which was the subject of the complaint. Similarly, in none of them were separate alleged breaches of contract combined for damage purposes into one “total loss” figure, with no attempt made to segregate the increased costs flowing directly from each breach. Great Lakes Dredge & Dock Co. v. United States, 119 Ct. Cl. 504, 96 F. Supp. 923 (1951), cert. denied, 342 U.S. 953 (1952), involved an equitable adjustment to which the court held the contractor to be entitled as a result of a changed condition. The contract provided, in accordance with the usual standard clause, that such an adjustment should be based upon an “increase or decrease of cost.” In such cases" }, { "docid": "23694321", "title": "", "text": "no prejudice to defendant and that any argument of untimeliness had been waived. H.H. 0. Co. v. United States, 12 Cl.Ct. 147, 160 (1987) (citing Copco Steel & Eng’g Co. v. United States, 169 Ct.Cl. 601, 341 F.2d 590, 598-600 (1965)). B. Burden of Proof The burden of proving its claims is solely upon plaintiff. It has long been held that the contractor bears the burden of proving the amount of its damages “with sufficient certainty so that the determination of the amount of damages will be more than mere speculation.” Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 767 (Fed.Cir.1987) (quoting Willems Indus., Inc. v. United States, 155 Ct.Cl. 360, 295 F.2d 822, 831 (1961), cert. denied, 370 U.S. 903, 82 S.Ct. 1249, 8 L.Ed.2d 400 (1962)). The burden is measurable. Since plaintiff has the burden of establishing entitlement to an equitable adjustment under the terms of the contract, Nager Elec. Co. v. United States, 194 Ct.Cl. 835, 442 F.2d 936, 946 (1971), it must present proof sufficient to convince the court by a preponderance of the evidence that it is in fact entitled to an equitable adjustment. Even though this phase of the litigation is limited to liability, the court is constrained to point out, and consider where necessary, that this standard of proof also applies to proof of the amount of plaintiff’s increased costs. 4 McBride & Wachtel, Government Contracts § 28.240, at 28-428 (1963 & Supp. 1993). In adjudicating plaintiff’s additional cost and change order claims the court must consider, and apply where proper, its findings made on the delay claim discussed in section IV. of this opinion, because a determination of liability for delay is intertwined with many of these claims. C. Offsets Defendant administratively allowed costs and time extensions on nine claims, see note 30, supra, but the costs allowed were withheld by defendant to be offset against its counterclaims. Plaintiff challenged defendant’s right to offset funds it had agreed to pay under previous modifications to the contract, but withheld. Even when no contract clause permits the withholding of payments defendant has the" }, { "docid": "19999253", "title": "", "text": "where no other means of accurately computing damages are available. J.D. Hedin v. United States, 171 Ct.Cl. 70, 347 F.2d 235 (1965); G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 676 (1984); Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 193, 351 F.2d 956 (1965). That is to say, the total cost method is only utilized in extreme cases where it is difficult or impossible to identify specific increases in costs with the actions of the defendant. Phillips Construction Co. v. United States, 184 Ct.Cl. 249, 394 F.2d 834 (1968). In light of these constrictions, the courts, as a safeguard against the utilization of the total cost method, have developed a set of criteria which the plaintiff must establish in order to secure a recovery of damages under this approach. In short, the acceptability of said methodology hinges on plaintiff’s proof of — (i) the impracticability of proving actual losses directly; (ii) the reasonableness of its bid; (iii) the reasonableness of its actual costs; and (iv) the lack of responsibility for the added costs. Servidone, 931 F.2d at 861; Boyajian v. United States, 191 Ct.Cl. 233, 246-254, 423 F.2d 1231 (1970); WRB Corporation v. United States, 183 Ct.Cl. 409, 426 (1968). In general, the Claims Court has not only strictly adhered to this four-part conjunctive test, but it has also held that the plaintiff has the burden of proving its damages by a preponderance of the evidence. Teledyne McCormick-Selph v. United States, 218 Ct.Cl. 513, 517, 588 F.2d 808 (1978). Thus, if plaintiff cannot prove all of the elements, or if the defendant can disprove at least one of them, the court will deny total cost recovery. See Servidone, 931 F.2d at 862. Such a circumstance, however, is not fatal to a recovery of damages inasmuch as it may give rise to the court’s use of an alternative, i.e., the modified total cost method. Id. The modified total cost method is simply the total cost method modified or adjusted for any deficiencies in the plaintiff’s proof in satisfying the four requirements of said method. See Servidone, 931 F.2d" }, { "docid": "19999265", "title": "", "text": "to determine whether Ms. Finch’s testimony corroborated the aforementioned costs and related them back to its source documents, thereby allowing the court to comfortably rely upon said costs, despite the fact that plaintiff failed to adduce its original source documents. Also, we proceed in this manner in light of our predecessor court’s holding that — “[a] schedule of verified costs ... is not proof of damages but only a starting point.” Boyajian, 191 Ct.Cl. at 247, 423 F.2d at 1239. The Court of Claims also held that “[plaintiff’s costs] appearing] on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else____” Id. (quoting Roberts v. United States, 174 Ct.Cl. 940, 949, 357 F.2d 938 (1966)). In reviewing Ms. Finch’s testimony and the documents she admittedly prepared, PXs 169 and 170, the court gets no comfort as to the probative value of the job sheet (PX 162) inasmuch as PXs 169 and 170 are merely a regurgitation of PX 162. Tr. 566-740. To this extent, and on the whole, Ms. Finch’s testimony was neither credible nor probative as to PX 162. When questioned by the court as to exactly what she did to verify PX 162, Ms. Finch testified that she merely reviewed the numbers, i.e., refooted the exhibit to ensure that the totals were correct. Id. She also stated that she looked at the computerized general ledger reports to verify the amounts on the exhibit. However, when asked if she verified all the figures or at least a majority of them, she testified that she only looked at two of the 29 accounts and that she did not review any supporting documentation with respect to any of the alleged costs. Tr. 579 and 650. It is obvious to the court, against this record, that a mere sampling of less than 10% of plaintiff’s alleged costs is clearly inappropriate given the magnitude of plaintiff’s contentions with respect to its damage claims. Moreover, when the defendant questioned Ms. Finch as to whether she was aware of how this particular job cost sheet was prepared, her" }, { "docid": "23431600", "title": "", "text": "Corp. v. United States, supra, 159 Ct.Cl. at 270-271, where the court held: “Recoverable damages cannot be proved by a naked claim for a return of costs even where they are verified. The costs must be tied in to fault on defendant’s part. Plaintiff’s claim is something like an attempt to secure damages based on the difference between costs and the contract price or a bid price. Such a method was rejected by the court in F. H. McGraw & Co. v. United States, 130 F.Supp. 394, 131 Ct.Cl. 501, 511 * * *. A schedule of verified costs * * * is not proof of damages but only a starting point * * *. Such a schedule verified by defendant is not an admission of anything but the accuracy of the statement reflecting the contents of books and records examined and the allocations and computations based thereon. Plaintiff’s one witness who testified about costs only verified that they were incurred on the job * * *. That did not prove defendant’s responsibility for those costs nor their reasonableness.” And in Roberts v. United States, supra, 357 F.2d at 944-945, 174 Ct.Cl. at 949, the court again noted “ * * * their [plaintiff’s costs] appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else ****** [P]roof that the plaintiff’s costs * * * exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference.” It is true, as plaintiff points out, that a calculation of a contractor’s total expenditure in the performance of his contract has been used in a few cases as the basis for a determination of his damages or increased costs resulting from some act of the defendant. However, an examination of each such case in this court demonstrates that in none of them did the damage proof relied on consist, as it does here, only of a single subtraction of contract receipts from total expenditures. In all of them, the total cost computation was used as" }, { "docid": "6575255", "title": "", "text": "and to forward its claim to the contracting officer in the most efficient manner possible. For example, the 60-day period in which the contracting officer must make a final decision begins only after the claim’s receipt by the contracting officer. 41 U.S.C. § 605(c)(1), (c)(2) (1988). The sooner a contractor ensures receipt by the contracting officer, the sooner a final decision will be issued, and the sooner it will receive any award. An even more compelling incentive is that interest, if any, on any adjustment accrues from the date the “contracting officer receives the claim.” 41 U.S.C. § 611 (1988) (emphasis added). Under § 611, delayed delivery to the contracting officer will cost the contractor money in a decreased interest payment. As the American Roofing court concluded, it is the “contractor [who] bears the risk for delayed or lost submissions prior to receipt by the [contracting officer].” 21 Cl.Ct. at 268. Accordingly, we hold that Dawco’s claim was “submitted” as required by the Act. Ill To establish the amount of the equitable adjustment due Dawco, the Claims Court resorted to the “jury verdict method.” Dawco, 18 Cl.Ct. at 696-700. This approach, most often employed when damages cannot be ascertained by any reasonable computation from actual figures, however, is not favored and may be used only when other, more exact, methods cannot be applied. Specialty Assembling & Packing Co. v. United States, 355 F.2d 554, 572, 174 Ct.Cl. 153 (1966). Before adopting the “jury verdict method,” the court must first determine three things: (1) that clear proof of injury exists; (2) that there is no more reliable method for computing damages; and (3) that the evidence is sufficient for a court to make a fair and reasonable approximation of the damages. WRB Corporation v. United States, 183 Ct.Cl. 409, 425 (1968). In this case, the court’s determinations that Dawco had met the first and second of these requirements were erroneous. The selection of the proper method for determining damages is a legal decision which we review non-deferentially on the basis of reasonableness. Cf. Electron ic and Missile Facilities, Inc. v. United" }, { "docid": "23431616", "title": "", "text": "submitting satisfactory proof of damage also includes the burden of submitting “fully substantiated * * * supporting evidence” that “its actual costs were reasonable.” Id. Consequently, it is clear that a contractor does not meet such burden by simply proving what its total expenditures were, and then resting on a presumption of reasonableness as was applied by the court in the quite peculiar equitable adjustment circumstances involved in the Bruce Construction Corp. case. In situations where the court has rejected the “total cost” method of proving damages, but where the record nevertheless contains reasonably satisfactory evidence of what the damages are, computed on an acceptable basis, the court has adopted such other evidence, Christensen Construction Co. v. United States, supra; Lilley-Ames Co., Inc. v. United States, supra; F. H. McGraw & Co. v. United States, supra; Turnbull, Inc. et al. v. United States, supra; or where such other evidence, although not satisfactory in and of itself upon which to base a judgment, has nevertheless been considered at least sufficient upon which to predicate a “jury verdict” award, it has rendered a judgment based on such a verdict. WRB Corp., et al. v. United States, supra, 183 Ct.Cl. at 425-426. Cf. Phillips Construction Co. v. United States, supra, 394 F.2d at 842, 184 Ct.Cl. at 263. However, where the record is blank with respect to any such other alternative evidence, the court has been obliged to dismiss the claim for failure of damage proof, regardless of the merits. Roberts v. United States, supra, 357 F.2d at 943-944, 174 Ct.Cl. at 946, 949; Snyder-Lynch Motors, Inc. v. United States, supra, 292 F.2d at 910, 154 Ct.Cl. at 480; Wunderlich Contracting Co. et al. v. United States, supra, 351 F.2d at 964-965, 173 Ct.Cl. at 192-193. Cf. River Construction Corp. v. United States, supra, 159 Ct.Cl. at 259. The instant case falls in the latter category. Accordingly, plaintiff’s three causes of action based upon the Modulator contract must be dismissed. THE INTERVAL AND DWELL TESTER CONTRACT CLAIMS Fourth Cause of Action Paragraph (a) of Part II of the contract Schedule, which part was" }, { "docid": "6575256", "title": "", "text": "the Claims Court resorted to the “jury verdict method.” Dawco, 18 Cl.Ct. at 696-700. This approach, most often employed when damages cannot be ascertained by any reasonable computation from actual figures, however, is not favored and may be used only when other, more exact, methods cannot be applied. Specialty Assembling & Packing Co. v. United States, 355 F.2d 554, 572, 174 Ct.Cl. 153 (1966). Before adopting the “jury verdict method,” the court must first determine three things: (1) that clear proof of injury exists; (2) that there is no more reliable method for computing damages; and (3) that the evidence is sufficient for a court to make a fair and reasonable approximation of the damages. WRB Corporation v. United States, 183 Ct.Cl. 409, 425 (1968). In this case, the court’s determinations that Dawco had met the first and second of these requirements were erroneous. The selection of the proper method for determining damages is a legal decision which we review non-deferentially on the basis of reasonableness. Cf. Electron ic and Missile Facilities, Inc. v. United States, 416 F.2d 1345, 1354, 189 Ct.Cl. 237 (1969) (review goes to the reasonableness of what the agency did on the basis of the evidence before it). Although the Claims Court agreed that Dawco had submitted what amounted to a “total cost” claim, it nevertheless resorted to the “jury verdict method,” rather than require a detailed and documented cost breakdown from Dawco. The court’s conclusion that the “jury verdict method” was appropriate was based on a determination that it was “not possible for [Dawco] to prove actual damages, [although] sufficient information exist[ed] to enable the court to arrive at a fair approximation of the damages.” Dawco, 18 Cl.Ct. at 698. However, “it is equally well-settled that the amount of the recovery can only be approximated in the format of a ‘jury verdict’ where the claimant can demonstrate a justifiable inability to substantiate the amount of his resultant injury by direct and specific proof.” Joseph Pickard’s Sons Co. v. United States, 532 F.2d 739, 742, 209 Ct.Cl. 643 (1976) (emphasis added). Contrary to Dawco’s assertion, the" }, { "docid": "23431615", "title": "", "text": "rejecting the “total cost” method, and all reiterating or quoting with approval said of-cited statement from F. H. McGraw & Co., supra, which plaintiff argues was superseded by Bruce. For instance, in WRB Corp., the court stated: “This theory has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated. [Citations omitted.] The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable ; and (4) it was not responsible for the added expenses.” And the court went on to state that it was not satisfied “that plaintiff sufficiently proved the reasonableness of its estimates or its actual costs.” [Emphasis supplied.] 183 Ct.Cl. at 426. Thus, the court made clear that in such a case, the contractor’s obligation of carrying its burden of submitting satisfactory proof of damage also includes the burden of submitting “fully substantiated * * * supporting evidence” that “its actual costs were reasonable.” Id. Consequently, it is clear that a contractor does not meet such burden by simply proving what its total expenditures were, and then resting on a presumption of reasonableness as was applied by the court in the quite peculiar equitable adjustment circumstances involved in the Bruce Construction Corp. case. In situations where the court has rejected the “total cost” method of proving damages, but where the record nevertheless contains reasonably satisfactory evidence of what the damages are, computed on an acceptable basis, the court has adopted such other evidence, Christensen Construction Co. v. United States, supra; Lilley-Ames Co., Inc. v. United States, supra; F. H. McGraw & Co. v. United States, supra; Turnbull, Inc. et al. v. United States, supra; or where such other evidence, although not satisfactory in and of itself upon which to base a judgment, has nevertheless been considered at least sufficient upon which to predicate a “jury" }, { "docid": "20646281", "title": "", "text": "and of itself acceptable “proof,” was made plain in River Construction Corp. v. United States, supra, 159 Ct. Cl. at 270-71, where the court held: “Recoverable damages cannot be proved by a naked claim for a return of costs even where they are verified. The costs must be tied in to fault on defendant’s part. Plaintiff’s claim is something like an attempt to secure damages based on the difference between costs and the contract price or a bid price. Such a method was rejected by the court in F. H. McGraw & Co. v. United States, 131 Ct. Cl. 501, 511 * * *. A schedule of verified costs * * * is not proof of damages but only a starting point * * *. Such a schedule verified by defendant is not an admission of anything but the accuracy of the statement reflecting the contents of books and records examined and the allocations and computations based thereon. Plaintiff’s one witness who testified about costs only verified that they were incurred on the job * * *. That did not prove defendant’s responsibility for those costs nor their reasonableness.” And in Roberts v. United States, supra, 174 Ct. Cl. at 949, 357 F. 2d at 944-45, the court again noted “* * * their [plaintiff’s costs] appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else ****** [p]roof that the plaintiff’s costs * * * exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference.” It is true, as plaintiff points out, that a calculation of a contractor’s total expenditure in the performance of his contract has been used in a few cases as the basis for a determination of his damages or increased costs resulting from some act of the defendant. However, an examination of each such case in this court demonstrates that in none of them did the damage proof relied on consist, as it does here, only of a single subtraction of contract receipts from total expenditures." }, { "docid": "23431601", "title": "", "text": "costs nor their reasonableness.” And in Roberts v. United States, supra, 357 F.2d at 944-945, 174 Ct.Cl. at 949, the court again noted “ * * * their [plaintiff’s costs] appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else ****** [P]roof that the plaintiff’s costs * * * exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference.” It is true, as plaintiff points out, that a calculation of a contractor’s total expenditure in the performance of his contract has been used in a few cases as the basis for a determination of his damages or increased costs resulting from some act of the defendant. However, an examination of each such case in this court demonstrates that in none of them did the damage proof relied on consist, as it does here, only of a single subtraction of contract receipts from total expenditures. In all of them, the total cost computation was used as “only a starting point” (River Construction Corp. v. United States, supra, 159 Ct.Cl. at 271), with such adjustments thereafter made in such computation as allowances for various factors as to convince the court that the ultimate, reduced, figure fairly represented the increased costs the contractor directly suffered from the particular action of defendant which was the subject of the complaint. Similarly, in none of them were separate alleged breaches of contract combined for damage purposes into one “total loss” figure, with no attempt made to segregate the. increased costs flowing directly from each breach. Great Lakes Dredge & Dock Co. v. United States, 96 F.Supp. 923, 119 Ct.Cl. 504 (1951), cert. denied, 342 U.S. 953, 72 S.Ct. 624, 96 L.Ed. 708 (1952), involved an equitable adjustment to which the court held the contractor to be entitled as a result of a changed condition. The contract provided, in accordance with the usual standard clause, that such an adjustment should be based upon an “increase or decrease of cost.” In such cases the starting point for the" }, { "docid": "19999264", "title": "", "text": "costs are included in the remaining $2,677,922.32. In fact, the only reference to said amount is a handwritten notation that indicates that $2,677,922.32 was merely added to $1,054,863.99 to aggregate the $3,732,786.31 total. There is no proof, therefore, as to where the $2,677,922.32 originated from, what it entails, or who even wrote the amount on the exhibit. While plaintiff admitted that its books and records were in the courtroom (Tr. 740), it neglected to explain its failure to offer same into evidence to corroborate said costs. Again, since plaintiff failed in this regard, we are compelled to draw an adverse inference with respect to PX 162 in proof of the $3,732,786.31 in costs. Hoffman v. Commissioner, 298 F.2d 784, 788 (3d Cir.1962). This is appropriate because, based on PX 162, the court is at a loss as to what detailed costs are contained in the $3,732,786.31. The court, therefore, went on to consider the other relevant evidence in addition to Ms. Finch’s testimony as to the alleged costs herein. In so doing, the court sought to determine whether Ms. Finch’s testimony corroborated the aforementioned costs and related them back to its source documents, thereby allowing the court to comfortably rely upon said costs, despite the fact that plaintiff failed to adduce its original source documents. Also, we proceed in this manner in light of our predecessor court’s holding that — “[a] schedule of verified costs ... is not proof of damages but only a starting point.” Boyajian, 191 Ct.Cl. at 247, 423 F.2d at 1239. The Court of Claims also held that “[plaintiff’s costs] appearing] on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else____” Id. (quoting Roberts v. United States, 174 Ct.Cl. 940, 949, 357 F.2d 938 (1966)). In reviewing Ms. Finch’s testimony and the documents she admittedly prepared, PXs 169 and 170, the court gets no comfort as to the probative value of the job sheet (PX 162) inasmuch as PXs 169 and 170 are merely a regurgitation of PX 162. Tr. 566-740. To this extent, and on the whole," }, { "docid": "19999244", "title": "", "text": "the contractor from his study of the contract documents, his inspection of the site, and his genera] experience, if any, in the contract area; and (iii) the condition encountered was materially different from those ordinarily encountered and generally recognized as inhering in the work of this character. Servidone, 19 Cl.Ct. at 360; Perini, 180 Ct.Cl. at 780, 381 F.2d 403. See generally Loftis, 110 Ct.Cl. at 618, 76 F.Supp. 816; Lathan Company, Inc. v. United States, 20 Cl.Ct. 122 (1990); S.T.G. Construction Co. v. United States, 157 Ct.Cl. 409, 415 (1962). In other words, to prevail on this issue, plaintiff must prove, by a preponderance of the evidence, either elements # 1 and # 3 or elements # 2 and # 3. In reviewing the record with respect to the Type II claim, the court finds that not only does the defendant fail to even address the claim, but also the plaintiff merely addresses the claim in a highly conclusory argumentative manner. That is to say, plaintiff points to no probative evidence in the record, and we find none, purporting to prove, by a preponderance of the evidence, the foregoing elements that must be established. For example, in its brief of December 10, 1991, plaintiff discusses (at p. 51) this issue on all of one page and merely hospitably concludes that: It did not know of the subsurface rock. Youngdale could not have anticipated the condition from looking at the site — it was slightly rolling and no rock was evident. It is not normal to encounter pervasive cementitious rock at depths of 1 to 4 feet in contracting work. While defendant proffers no argument or proof respecting the existence of a Type II different site condition respecting the rock, this circumstance gives plaintiff no comfort inasmuch as the threshold burden of proof is on plaintiff respecting this issue. Given this record, apparently neither party is of the position that the facts herein will support a finding that the rock constituted a Type II differing site condition, and we agree, as discussed, infra. Turning to the first element, i.e., the" }, { "docid": "3388824", "title": "", "text": "of liability. To show the amount of injury, Servidone presented evidence under the total cost method. Servidone, 19 Cl.Ct. at 384. Under this method, the contractor must show: (1) the impracticability of proving actual losses directly; (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs. WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968). Although finding Servidone’s bid unreasonable, the Claims Court awarded damages. Servidone, 19 Cl.Ct. at 384-85. In doing so, the Claims Court employed a modified total cost method. This modified method substituted a reasonable bid amount for Servidone’s original estimate. A trial court must use the total cost method with caution and as a last resort. Under this method, bidding inaccuracies can unjustifiably reduce the contractor’s estimated costs. Moreover, performance inefficiencies can inflate a contractor’s costs. These inaccuracies and inefficiencies can thus skew accurate computation of damages. Despite this risk, this court's predecessor condoned the total cost method in those extraordinary circumstances where no other way to compute damages was feasible and where the trial court employed proper safeguards. Great Lakes Dredge & Dock Co. v. United States, 119 Ct.Cl. 504, 559, 96 F.Supp. 923, 926 (1951), cert. denied, 342 U.S. 953, 72 S.Ct. 624, 96 L.Ed. 708 (1952); Boyajian v. United States, 423 F.2d 1231, 1241, 191 Ct.Cl. 233 (1970). The Claims Court found that Servidone met the four-part test and thus approved the total cost method in this case. Servidone, 19 Cl.Ct. at 384. The Claims Court granted Servidone a recovery under the modified total cost method: [T]he total cost approach was used as “only a starting point\" with such adjustments thereafter made in such computations as allowances for various factors as to convince the court that the ultimate, reduced, figure fairly represented the increased costs the contractor directly suffered from the particular action of defendant which was the subject of the complaint. Boyajian, 423 F.2d at 1240 (citation omitted); see also, MacDougald Constr. Co. v. United States, 122 Ct.Cl. 210 (1952). The Claims Court modified the total cost method to" }, { "docid": "3388823", "title": "", "text": "in the damages computation. This substitution reduced Servidone’s claimed costs by $9,262,459.00. These findings produced an award to Servidone of $14,441,123.00. The trial court awarded Servidone interest on this sum from the date the Government contracting officer received Servidone’s certified claim. The Claims Court rejected Servidone’s request for recovery of over $13 million in interest on borrowings to cover the additional performance costs. On appeal, the Government questions both the damages and interest awards. On cross-appeal, Servidone questions the court’s substitution of a higher bid for Ser-vidone’s bid under the total cost method. Servidone also challenged the Claims Court’s denial of $13 million in interest on borrowings. DISCUSSION To receive an equitable adjustment from the Government, a contractor must show three necessary elements—liability, causation, and resultant injury. Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968, 173 Ct.Cl. 180 (1965). Servidone presented causation evidence on three theories, one of which—the Type II differing site condition—the trial court sustained. This court discerns no basis for determining that the Claims Court clearly erred in this finding of liability. To show the amount of injury, Servidone presented evidence under the total cost method. Servidone, 19 Cl.Ct. at 384. Under this method, the contractor must show: (1) the impracticability of proving actual losses directly; (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs. WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968). Although finding Servidone’s bid unreasonable, the Claims Court awarded damages. Servidone, 19 Cl.Ct. at 384-85. In doing so, the Claims Court employed a modified total cost method. This modified method substituted a reasonable bid amount for Servidone’s original estimate. A trial court must use the total cost method with caution and as a last resort. Under this method, bidding inaccuracies can unjustifiably reduce the contractor’s estimated costs. Moreover, performance inefficiencies can inflate a contractor’s costs. These inaccuracies and inefficiencies can thus skew accurate computation of damages. Despite this risk, this court's predecessor condoned the total cost method in those extraordinary circumstances where no other way to compute" } ]

[ { "docid": "19910398", "title": "", "text": "district court should have considered this factor in favor of transfer. See Genentech, 566 F.3d at 1345. The district court also disregarded Volkswagen and Genentech in holding that the Eastern District of North Carolina had no more of a local interest in deciding this matter than the Eastern District of Texas. While the sale of an accused product offered nationwide does not give rise to a substantial interest in any single venue, TS Tech, 551 F.3d at 1321, if there are significant connections between a particular venue and the events that gave rise to a suit, this factor should be weighed in that venue’s favor. Genentech, 566 F.3d at 1347; Volkswagen, 545 F.3d at 317-18. The Eastern District of North Carolina’s interest in this matter is self-evident. Meanwhile, it is undisputed that this case has no relevant factual connection to the Eastern District of Texas. The district court ignored this significant contrast, reasoning that “where a number of private interest factors weigh heavily in one direction, that venue has a slightly greater local interest,” but “[w]here, however, the factors do not weigh heavily in one direction of [sic] the other, no one venue has more or less a meaningful connection to the case than any other.” By relying exclusively on how other forum non conveniens factors weigh, rather than assessing the locale’s connection to the cause of action, the district court essentially rendered this factor meaningless. Therefore, because the Eastern District of North Carolina has a meaningful local interest in adjudicating the dispute and no meaningful connection exists with the Eastern District of Texas, this factor also favors transfer. Accordingly, IT IS ORDERED THAT: The petition is granted and the district court is directed to promptly transfer the ease to the Eastern District of North Carolina. . The \"private” interest factors include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make a trial easy, expeditious and inexpensive. Piper Aircraft Co. v." } ]

[ { "docid": "20032404", "title": "", "text": "ON PETITION FOR WRIT OF MANDAMUS SCHALL, Circuit Judge. ORDER The twelve petitioners, defendants in a patent infringement action, seek a writ of mandamus to direct the United States District Court for the Eastern District of Texas to vacate its orders denying their motion to transfer venue, and to direct transfer to the United States District Court for the Northern District of California. The plaintiff in the infringement action, MedioStream, Inc., opposes. Petitioners reply. MedioStream, a company headquartered in the Northern District of California, brought suit in the Eastern District of Texas against twelve hardware and software companies, five of which are also headquartered in the Northern District of California. The petitioners moved to transfer venue to the Northern District of California pursuant to 28 U.S.C. § 1404(a), which authorizes transfer “[f]or the convenience of parties and witnesses, in the interest of justice.” The petitioners argued that trial in the Northern District of California would be convenient for several of the parties and witnesses. The district court denied the motion, based largely on the presence of one petitioner, Dell, Inc., which is headquartered in Round Rock, Texas, which is outside the Eastern District and some 300 miles from Marshall, Texas, where the litigation is pending. Applying Fifth Circuit law in cases arising from district courts in that circuit, this court has held that mandamus may be used to correct a patently erroneous denial of transfer. See In re Nintendo Co., 589 F.3d 1194 (Fed.Cir.2009); In re Hojfmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir.2009); In re Genentech, Inc., 566 F.3d 1338 (Fed.Cir.2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed.Cir.2008); see also In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir.2008) (en banc). In determining whether the transferee venue is clearly more convenient, the Fifth Circuit applies the public and private factors used in forum non conveniens analysis. Volkswagen, 545 F.3d at 314 n. 9. As we noted in TS Tech, the private interest factors include (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance" }, { "docid": "13448673", "title": "", "text": "identified a number of companies as nonparties with relevant information regarding the allegations. Apple contends that those nonparties would be inconvenienced by litigation in Western Arkansas. Unfortunately, the district court did not determine which of those nonparties likely possessed material information, see In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed.Cir.2009), but we know that at least one of these companies — Synnex Technology International Corporation — has its principal place of business in Fremont, California. Luxpro alleges that Synnex, an Apple supplier, “threatened a number of Taiwanese Luxpro distributors.” Synnex would be inconvenienced by sending witnesses to testify in Arkansas rather than in California. With respect to the remaining nonparty witnesses located in foreign countries, and Luxpro’s witnesses in Taiwan, the two venues are roughly equivalent, for we recognize that persons coming from abroad “will be required to travel a significant distance no matter where they testify.” Id. at 1344. The district court found that the location of documents did not favor transfer in “this age of electronic document transmissions.” Apple contends, and Luxpro does not seriously dispute, that much of Apple’s relevant documentary evidence is located in its Cupertino headquarters. While electronic filing may lessen the inconvenience of document handling, if the need arises to refer to original documents or evidence in the litigation, Northern California would prove more convenient. See In re Volkswagen, 545 F.3d at 316. We accord no weight to Luxpro’s contention that the vast majority of its relevant documents are located with its attorneys in Western Arkansas. A plaintiff may not defeat a motion to transfer by shipping relevant documents to local counsel in its chosen venue. See In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1336-37 (Fed. Cir.2009). The district court “agree[d] with Luxpro that no venue is more convenient for the place where the alleged wrongs occurred.” Although Apple’s alleged misconduct occurred in various countries, according to Luxpro’s complaint, one such country is the United States. Luxpro does not dispute Apple’s contention that alleged misconduct originated from the Cupertino headquarters, where many of Apple’s attorneys with a role in enforcing intellectual property" }, { "docid": "14076459", "title": "", "text": "witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum’s familiarity with governing law, (8) the weight accorded to plaintiffs choice of forum, and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. Fuji Photo Film Co., Ltd. v. Lexar Media, Inc., 415 F.Supp.2d 370, 373 (S.D.N.Y.2006). B. Application of Law to Facts 1. The Case Could Have Been Initiated in the Northern District of Illinois Since Helferich is registered to do business in Illinois, the courts of that state could have exercised personal jurisdiction over it at the time the suit commenced. See 735 Ill. Comp. Stat. Ann. 5/2-209(b)(4). JetBlue is also subject to personal jurisdiction there. It is an airline operating planes that regularly serve areas in the Northern District of Illinois. 2. Remaining Factors Weigh in Favor of Transfer a) Convenience of Witnesses The convenience of witnesses is an important factor in considering whether transfer is appropriate. See Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F.Supp.2d 325, 329 (E.D.N.Y.2006) (citing cases). In the context of patent litigation, particular emphasis is placed on the convenience for witnesses testifying about the technology of allegedly infringing inventions. See Int’l Securities Exch., LLC v. Chicago Bd. Options Exch. Inc., No. 06-CV-13445, 2007 WL 1541087, at *3 (S.D.N.Y. May 24, 2007) (citing cases). JetBlue contends that, “with one exception, all JetBlue employees directly involved” with any allegedly infringing products work at JetBlue’s headquarters in New York. See PL’s Supp. Ex. A, Feb. 7, 2013, ECF No. 20-1 (“Miller Decl.”) ¶4. Helferich anticipates reliance on one non-party witness who lives in California. See Def.’s Second Supp. Br. 4. That witness will have to travel a significant distance whether this case is tried in Illinois or New York. But, the bulk of testimony from both sides — for example, on topics like claim construction —" }, { "docid": "20032405", "title": "", "text": "of one petitioner, Dell, Inc., which is headquartered in Round Rock, Texas, which is outside the Eastern District and some 300 miles from Marshall, Texas, where the litigation is pending. Applying Fifth Circuit law in cases arising from district courts in that circuit, this court has held that mandamus may be used to correct a patently erroneous denial of transfer. See In re Nintendo Co., 589 F.3d 1194 (Fed.Cir.2009); In re Hojfmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir.2009); In re Genentech, Inc., 566 F.3d 1338 (Fed.Cir.2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed.Cir.2008); see also In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir.2008) (en banc). In determining whether the transferee venue is clearly more convenient, the Fifth Circuit applies the public and private factors used in forum non conveniens analysis. Volkswagen, 545 F.3d at 314 n. 9. As we noted in TS Tech, the private interest factors include (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make a trial easy, expeditious, and inexpensive. 551 F.3d at 1319. The public interest factors include (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflicts of laws or in the application of foreign law. Id. All of the U.S.-based companies in this case except for Dell and Microsoft are headquartered in California, including six companies actually located within the Northern District of California. Meanwhile, no party is headquartered in the Eastern District of Texas. Our prior or ders in venue transfer cases make clear that the combination of multiple parties being headquartered in or near the transferee venue and no party or witness in the plaintiffs chosen forum is an important consideration. See Nintendo, 589 F.3d at 1198 (“[I]n a case featuring most witnesses and" }, { "docid": "22578831", "title": "", "text": "would need to travel approximately 900 more miles to attend trial in Texas than in Ohio. Despite this distance and added cost to the witnesses, the district court “was not persuaded to give great weight” to this inconvenience. Id. The district court’s disregard of the 100-mile rule constitutes clear error. Furthermore, because the identified witnesses would need to travel a significantly further distance from home to attend trial in Texas than Ohio, the district court’s refusal to considerably weigh this factor in favor of transfer was erroneous. Third, the district court erred by reading out of the § 1404(a) analysis the factor regarding the relative ease of access to sources of proof. As acknowledged in the district court’s order, the vast majority of physical and documentary evidence relevant to this case will be found in Ohio, Michigan, and Canada, and none of the evidence is located in Texas. Id. at 5. Concluding that this factor was neutral as to transfer, the district court explained that since many of the documents were stored electronically, “the increased ease or storage and transportation” makes this factor “much less significant.” Id. However, as the Fifth Circuit explained in Volkswagen II, the fact “that access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous.” 545 F.3d at 316. Because all of the physical evidence, including the headrests and the documentary evidence, are far more conveniently located near the Ohio venue, the district court erred in not weighing this factor in favor of transfer. Finally, the district court disregarded Fifth Circuit precedent in analyzing the public interest in having localized interests decided at home. As in Volkswagen I and Volkswagen II, there is no relevant connection between the actions giving rise to this case and the Eastern District of Texas except that certain vehicles containing TS Tech’s headrest assembly have been sold in the venue. None of the companies have an office in the Eastern District of Texas; no identified witnesses reside in the Eastern District of Texas; and no evidence is" }, { "docid": "22929280", "title": "", "text": "District of Texas, the district court clearly erred in not determining this factor to weigh substantially in favor of transfer. Concerning the convenience of the parties, as we noted above, Genentech is headquartered within the Northern District of California. Biogen conducts research and development from its facilities in San Diego, California and at least some of its employees and managers would have to travel approximately half the distance to attend trial in Northern District of California than in the Eastern District of Texas. Sanofi is a German corporation that will be traveling a great distance no matter which venue the case is tried in and will be only slightly more inconvenienced by the case being tried in California than in Texas. Thus, the parties’ convenience factor favored transfer, and not only slightly. ii. Availability of Compulsory Process Pursuant to Rule 45(b)(2)(C) of the Federal Rules of Civil Procedure, a district court may compel attendance through the issuance of a subpoena at any place within the district of the court by which it is issued or at any place within 100 miles of where the deposition, trial, or hearing is being held. As noted above, there is a substantial number of witnesses within the subpoena power of the Northern District of California and no witness who can be compelled to appear in the Eastern District of Texas. The fact that the transferee venue is a venue with usable subpoena power here weighs in favor of transfer, and not only slightly. in. Access to Evidence “In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” Neil Bros. Ltd., 425 F.Supp.2d at 330 (quotation marks omitted). Here, Genentech informed the district court that all of its corporate documents relating to the development, manufacturing, and marketing of eight of the nine accused infringing products are housed in its headquarters, which is in the transferee venue. Biogen informed the district court that all of its relevant materials relating to the ninth allegedly" }, { "docid": "18201374", "title": "", "text": "in the Eastern District of Arkansas, jointly seeking a declaration of their rights to the allegedly infringing tortilla chip product. Given these facts presented by Plaintiff, the Court finds that Ralcorp and Medallion have sufficient minimum contacts with the State of Texas to justify subjecting them to personal jurisdiction. See GSK Techs., 2007 WL 788343, at *3; Cardsoft, Inc. v. Verifone Holdings, Inc., No. 2-08-CV-098, 2009 WL 361069, at *1-2 (E.D.Tex. Feb. 10, 2009). The Court also finds that the claim arises out of or relates to Defendants’ contacts with the State of Texas, since the claims all arise from the manufacture and sale of the allegedly infringing tortilla chip products. Finally, the Court finds that the exercise of jurisdiction over the Defendants does not offend traditional notions of fair play and substantial justice. Motion to Transfer Defendants argue that the proper and more convenient venue for this litigation is the Northern Division of the Eastern District of Arkansas. Plaintiff contends that the Eastern District of Texas, Sherman Division, is proper, and that Defendants have not met their burden to show that the Eastern District of Arkansas is clearly a more convenient forum for this litigation. The first question the Court must address when ruling on a motion to transfer venue under 28 U.S.C. § 1404(a) is whether the suit could have been filed originally in the destination venue. Volksivagen II, 545 F.3d at 312. The parties do not dispute that this case could have been filed in the Eastern District of Arkansas. The Court must review a number of private and public factors with regard to convenience on a motion to transfer venue. Volkswagen II, 545 F.3d at 315; TS Tech, 551 F.3d at 1319. A. Private Interest Factors (1) The Relative Ease of Access to Sources of Proof “Courts analyze this factor in light of the distance that documents, or other evidence must be transported from their existing location to the trial venue.” On Semiconductor Corp. v. Hynix Semiconductor, Inc., No. 6:09-CV-390, 2010 WL 3855520, at *2 (E.D.Tex. Sept. 30, 2010) (citing Volkswagen II, 545 F.3d at 316)." }, { "docid": "19237177", "title": "", "text": "from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed.Cir.2009) (citation omitted); see also In re Nintendo Co., Ltd., 589 F.3d 1194, 1199 (Fed.Cir.2009) (granting writ of mandamus to transfer case to location of alleged infringer’s research and development-related documents and evidence). Presumably, the bulk of the discovery material relating to a corporate party is located at the corporate headquarters. See In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed.Cir.2010). a. WMS WMS affirms that its documents related to its accused gaming machines are located in Waukegan and Chicago in the Northern District of Illinois. These documents include those related to the design, development, manufacture, marketing, advertising, and financial-related information for its accused gaming machines. Docket No. 23, WMS Motion, at 11. MGT alleges, however, that “the relevant witnesses and evidence are spread all over the United States, especially in Mississippi,” and that they are “not clearly concentrated” in Illinois. Docket No. 38, MGT Reply to WMS, at 6. MGT’s assertion reflects an underlying disagreement about the theory of the case between MGT and the Defendants that is apparent in MGT’s other arguments in its responses to the motions to transfer venue. MGT focuses on the “use,” the placement and operation, of the accused gaming machines in casinos as the main source of the infringement of the '088 patent. See 35 U.S.C. § 271(a). It alleges that venue in Illinois is improper because none of the accused games are played in Illinois. WMS and Aruze focus on the “making” of the accused gaming machines, which purportedly include the '088 patent. Thus, the locus of the action for MGT takes place in the defendant casinos, where the manufacturer and casino clients “jointly use” the accused machines. For WMS and Aruze, the center of the action is their corporate headquarters, which is where the development and manufacture of the accused games takes place. For the purposes of this factor in the venue transfer analysis, the Defendants’ focus on the “making” of" }, { "docid": "13448674", "title": "", "text": "does not seriously dispute, that much of Apple’s relevant documentary evidence is located in its Cupertino headquarters. While electronic filing may lessen the inconvenience of document handling, if the need arises to refer to original documents or evidence in the litigation, Northern California would prove more convenient. See In re Volkswagen, 545 F.3d at 316. We accord no weight to Luxpro’s contention that the vast majority of its relevant documents are located with its attorneys in Western Arkansas. A plaintiff may not defeat a motion to transfer by shipping relevant documents to local counsel in its chosen venue. See In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1336-37 (Fed. Cir.2009). The district court “agree[d] with Luxpro that no venue is more convenient for the place where the alleged wrongs occurred.” Although Apple’s alleged misconduct occurred in various countries, according to Luxpro’s complaint, one such country is the United States. Luxpro does not dispute Apple’s contention that alleged misconduct originated from the Cupertino headquarters, where many of Apple’s attorneys with a role in enforcing intellectual property rights are located. Thus, if Apple did carry out a plan to harm Luxpro’s business interests, “alleged wrongs” occurred in Northern California, while none of the alleged misconduct occurred in Western Arkansas. This weighs in favor of transfer. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (“There is a local interest in having localized controversies decided at home.”); In re Volkswagen, 545 F.3d at 317-18. In sum, the inconvenience to Apple would be significantly minimized if this case were litigated in Northern California. Luxpro would not face any material inconvenience by litigating in California rather than Arkansas. The district court’s conclusion that the “only connection” between Northern California and the dispute is that Apple is “headquartered there” understates the significance of the point. Many potential witnesses reside in California; much of Apple’s relevant documentation is located in California; and Northern California was the site of alleged misconduct. Accordingly, the case-specific factors that the district court considered relative to the convenience of the parties and witnesses weigh" }, { "docid": "19237175", "title": "", "text": "the Defendants, or whether venue is proper — this Court can answer both of those questions in the affirmative. The question is whether the transferee venues are “clearly more convenient” for the cases to be litigated there. It is undisputed that WMS’s corporate headquarters is in Waukegan, Illinois, and the technology campus where WMS designs and develops its games is in Chicago, Illinois. Waukegan and Chicago are both within the Northern District of Illinois. Accordingly, WMS is subject to personal jurisdiction in the Northern District of Illinois, and MGT could have filed this action against WMS in that district. 2. Aruze As an initial matter, Aruze’s extensive contacts in the District of Nevada also make it a venue in which this patent infringement suit could have been brought. It is undisputed that Aruze is a Nevada corporation whose principal place of business is located in Las Vegas, Nevada. Docket No. 37, Aruze Venue Motion, at 3. While the research and development of Aruze’s gaming machines occurs in Japan and the Philippines, the majority of Aruze’s operations relating to the Accused Games takes place in Nevada. Id. Aruze also directs its business development, marketing, and sales efforts from Nevada, and its gaming machines are tested, loaded with software, and prepared for distribution in Nevada. Id. Thus, Aruze is subject to personal jurisdiction in the District of Nevada, and MGT could have filed this action against Aruze in Nevada. C. Private Factors 1. Access to sources of proof Despite technological advances that certainly lighten the relative inconvenience of transporting large amounts of documents across the country, this factor remains a part of the transfer analysis. Volkswagen II, 545 F.3d at 316. Courts analyze this factor in light of the distance that documents, or other evidence, must be transported from their existing location to the trial venue. See id. This factor will turn upon which party will most probably have the greater volume of documents relevant to the litigation and their presumed location in relation to the transferee and transferor venues. “In patent infringement cases, the bulk of the relevant evidence usually comes" }, { "docid": "22929281", "title": "", "text": "at any place within 100 miles of where the deposition, trial, or hearing is being held. As noted above, there is a substantial number of witnesses within the subpoena power of the Northern District of California and no witness who can be compelled to appear in the Eastern District of Texas. The fact that the transferee venue is a venue with usable subpoena power here weighs in favor of transfer, and not only slightly. in. Access to Evidence “In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” Neil Bros. Ltd., 425 F.Supp.2d at 330 (quotation marks omitted). Here, Genentech informed the district court that all of its corporate documents relating to the development, manufacturing, and marketing of eight of the nine accused infringing products are housed in its headquarters, which is in the transferee venue. Biogen informed the district court that all of its relevant materials relating to the ninth allegedly infringing product are housed at its facilities in San Diego, California. The district court, however, stated that this factor was neutral. Although no evidence is housed within the state of Texas, the court stated that it would be easier for Sanofi to transport its documents from Europe to Texas. The court also noted that the prosecution history documents were maintained in the offices of a Washington, D.C. law firm that prosecuted the patents and that it would be easier to transport those documents to Texas than California. In addition, the district court speculated that although the petitioners identified all of its evidence in California, there could be evidence in existence in some other offices around the country. Finally, the district court minimized the inconvenience of requiring the petitioners to transport their documents by noting that “[t]he notion that the physical location of some relevant documents should play a substantial role in the venue analysis is somewhat antiquated in the era of electronic storage and transmission.” Sanofi-Aventis, 607 F.Supp.2d at 777. Sanofi argues that the district" }, { "docid": "1866472", "title": "", "text": "partnership with VideoEgg was negotiated and implemented there. Although injury from copyright infringement occurs where the copyrights are owned, the copyrighted works are alleged to have been disseminated worldwide and the operative facts that will determine liability occurred in the proposed transferee forum,”) (internal citations omitted). Therefore, even though some operative facts occurred in New York where the copyrights are owned and where the alleged injury occurred, the Court is persuaded that most of the operative facts weigh in favor of transfer to Tennessee. See, e,g„ Am. Eagle Outfitters, Inc. v. Tala Bros. Corp., 457 F.Supp.2d 474, 477-78 (S.D.N.Y.2006) (“The location of the books and records of the Plaintiffs relating to the strength of its mark are at least in part in New York and the Defendants’ records are in California. The Defendants’ records and witnesses relating to the operative facts and overall conduct are in California. The development of the operative facts weighs slightly in favor of Defendants.”). Therefore, this factor weighs in favor of transfer to the Middle District of Tennessee. 4. Location of Documents and Relative Ease of Access to Sources of Proof In copyright infringement cases, a bulk of the evidence typically comes from the infringer which therefore weighs in favor of .transferring the action to where the infringer’s documents are kept. See Capitol Records, LLC, 611 F.Supp.2d at 368. However, most documents- are electronic, and neither party has argued that there is a burden in transporting the Evidence to this district. Frame, 2007 WL 2815613, at *6 (“’[A]ccess to documents and other proof is not a persuasive factor in favor of transfer without proof that documents are particularly bulky or difficult to transport, or proof that it is somehow a greater imposition for defendant to bring its evidence to New York than for plaintiff to bring its evidence to [the moving party’s proposed forum].”); see also Atl. Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 697 (S.D.N.Y. 2009) (“This factor is neutral. Most, if not all, of the relevant documents in this case will be electronic, and Playlist will simply put them on disks" }, { "docid": "18201376", "title": "", "text": "This factor will rely on which party has a greater volume of documents relevant to the litigation, and their presumed location in relation to the transferee and transferor venues. Id. (citations omitted). Documents that have been moved in anticipation of litigation should not be considered. In re Hoffmann-La Roche, Inc., 587 F.3d 1333, 1336-37 (Fed.Cir.2009). Defendants assert that, “the bulk of the documentary evidence concerning the allegedly infringing product is located at Medallion’s production facility in Newport, Arkansas.” MOTION at 18. Defendants also assert that Wal-Mart will be a necessary source of evidence with respect to the alleged infringement of Plaintiffs trademarks and trade dress. Id. Defendants contend that the Northern Division of the Eastern District of Arkansas is located approximately 30 miles from Medallion’s production facility, and 200 miles from Wal-Mart’s headquarters in Bentonville, whereas the Eastern District of Texas is located approximately 300 miles from WalMart’s headquarters in Bentonville. Finally, Defendants argue that the allegedly infringing machines themselves are located in Arkansas. REPLY at 9. Plaintiff contends that the location of the evidence does not weigh in favor of transfer because evidence related to “documents and witnesses, including persons with knowledge about the research and development, marketing, branding strategies, the effects of Defendants’ deliberate knock-off product, and finances related to the TOSTITOS SCOOPS!,” are located in the Eastern District of Texas. SUR-REPLY at 8. Plaintiff argues that the patent inventors are located in the Eastern District of Texas. Plaintiff contends that Defendants fail to show why evidence from Wal-Mart will be required in this case, since Medallion manufactures the allegedly infringing chips. SURREPLY at 9. Finally, Plaintiff argues that there may be relevant evidence obtained from Ralcorp, which is headquartered in St. Louis, Missouri. RESPONSE at 21. “[T]his factor almost invariably turns on which party will most likely have the greater volume of relevant documents and their presumed physical location in relation to the venues under consideration.” Remmers v. U.S., No. 1:09-CV-345, 2009 WL 3617597, at *4 (E.D.Tex. Oct. 28, 2009) (citing Fujitsu Ltd. v. Tellabs, Inc., 639 F.Supp.2d 761, 767 (E.D.Tex.2009)). “In patent infringement cases, the bulk" }, { "docid": "15373894", "title": "", "text": "The district court explained that both districts had a local interest in adjudicating this matter because Allvoice maintained offices in the Eastern District of Texas and was incorporated under the laws of Texas. With regard to the witnesses, the district court weighed the factor slightly against transfer because All-voice had identified potential non-party witnesses not in the Eastern District of Texas but rather in New York, Massachusetts, and Florida who, according to the court, would find Texas more convenient for trial. Finally, with regard to the sources of proof, the district court weighed this factor only slightly in favor of transfer because Allvoice had said its documents were maintained in the Eastern District of Texas. II. A motion to transfer under § 1404(a) calls upon the trial court to weigh a number of case-specific factors relating to the convenience of the parties and witnesses, and the proper administration of justice, based on the individualized facts on record. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). Although a trial court has great discretion in these matters, we have applied Fifth Circuit law in cases arising from district courts in that circuit to hold that mandamus may issue when the trial court’s application of those factors amounts to a clear abuse of discretion. See, e.g., In re Nintendo Co., 589 F.3d 1194 (Fed.Cir.2009); In re Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir.2009); In re Genentech, Inc., 566 F.3d 1338 (Fed.Cir.2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed.Cir.2008). Thus, in Genentech, this court granted mandamus when the trial court relied on its central proximity to the witnesses and parties rather than a meaningful application of the factors. 566 F.3d at 1344. We determined that the factors should conform to the fact that a significant number of witnesses and parties were actually located within the transferee venue and could be deposed and testify without significant travel or expense, while no witness or party was located within the plaintiffs chosen forum. Id. at 1345. We held that the trial court’s application" }, { "docid": "18201377", "title": "", "text": "does not weigh in favor of transfer because evidence related to “documents and witnesses, including persons with knowledge about the research and development, marketing, branding strategies, the effects of Defendants’ deliberate knock-off product, and finances related to the TOSTITOS SCOOPS!,” are located in the Eastern District of Texas. SUR-REPLY at 8. Plaintiff argues that the patent inventors are located in the Eastern District of Texas. Plaintiff contends that Defendants fail to show why evidence from Wal-Mart will be required in this case, since Medallion manufactures the allegedly infringing chips. SURREPLY at 9. Finally, Plaintiff argues that there may be relevant evidence obtained from Ralcorp, which is headquartered in St. Louis, Missouri. RESPONSE at 21. “[T]his factor almost invariably turns on which party will most likely have the greater volume of relevant documents and their presumed physical location in relation to the venues under consideration.” Remmers v. U.S., No. 1:09-CV-345, 2009 WL 3617597, at *4 (E.D.Tex. Oct. 28, 2009) (citing Fujitsu Ltd. v. Tellabs, Inc., 639 F.Supp.2d 761, 767 (E.D.Tex.2009)). “In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re Genentech, 566 F.3d 1338, 1345 (Fed.Cir.2009) (internal quotations omitted). However, because the sources of proof originate from varied locations, this factor is neutral. An action in the Eastern District of Arkansas is not “clearly more convenient” for transporting documents that are located in the Eastern District of Texas and potentially Missouri. See, e.g., Konami Dig. Ent. Co. Ltd. v. Harmonix Music Sys., No. 6:08-CV-286-LED-JEL, 2009 WL 781134, at *4 (E.D.Tex. Mar. 23, 2009) (“While Defendants point to [the transferee district] as the location of significant sources of proof, they ignore the remaining sources of proof which originate from other locations.”); Perritt v. Jenkins, No. 4:11-CV-23-MHS-ALM, 2011 WL 3511468, at *3 (E.D.Tex. July 18, 2011) (“Because the sources of proof originate from varied locations, this factor is neutral.”). Further, “a case should not be transferred if the only practical effect is to shift inconvenience from the moving" }, { "docid": "18201375", "title": "", "text": "not met their burden to show that the Eastern District of Arkansas is clearly a more convenient forum for this litigation. The first question the Court must address when ruling on a motion to transfer venue under 28 U.S.C. § 1404(a) is whether the suit could have been filed originally in the destination venue. Volksivagen II, 545 F.3d at 312. The parties do not dispute that this case could have been filed in the Eastern District of Arkansas. The Court must review a number of private and public factors with regard to convenience on a motion to transfer venue. Volkswagen II, 545 F.3d at 315; TS Tech, 551 F.3d at 1319. A. Private Interest Factors (1) The Relative Ease of Access to Sources of Proof “Courts analyze this factor in light of the distance that documents, or other evidence must be transported from their existing location to the trial venue.” On Semiconductor Corp. v. Hynix Semiconductor, Inc., No. 6:09-CV-390, 2010 WL 3855520, at *2 (E.D.Tex. Sept. 30, 2010) (citing Volkswagen II, 545 F.3d at 316). This factor will rely on which party has a greater volume of documents relevant to the litigation, and their presumed location in relation to the transferee and transferor venues. Id. (citations omitted). Documents that have been moved in anticipation of litigation should not be considered. In re Hoffmann-La Roche, Inc., 587 F.3d 1333, 1336-37 (Fed.Cir.2009). Defendants assert that, “the bulk of the documentary evidence concerning the allegedly infringing product is located at Medallion’s production facility in Newport, Arkansas.” MOTION at 18. Defendants also assert that Wal-Mart will be a necessary source of evidence with respect to the alleged infringement of Plaintiffs trademarks and trade dress. Id. Defendants contend that the Northern Division of the Eastern District of Arkansas is located approximately 30 miles from Medallion’s production facility, and 200 miles from Wal-Mart’s headquarters in Bentonville, whereas the Eastern District of Texas is located approximately 300 miles from WalMart’s headquarters in Bentonville. Finally, Defendants argue that the allegedly infringing machines themselves are located in Arkansas. REPLY at 9. Plaintiff contends that the location of the evidence" }, { "docid": "18201378", "title": "", "text": "of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re Genentech, 566 F.3d 1338, 1345 (Fed.Cir.2009) (internal quotations omitted). However, because the sources of proof originate from varied locations, this factor is neutral. An action in the Eastern District of Arkansas is not “clearly more convenient” for transporting documents that are located in the Eastern District of Texas and potentially Missouri. See, e.g., Konami Dig. Ent. Co. Ltd. v. Harmonix Music Sys., No. 6:08-CV-286-LED-JEL, 2009 WL 781134, at *4 (E.D.Tex. Mar. 23, 2009) (“While Defendants point to [the transferee district] as the location of significant sources of proof, they ignore the remaining sources of proof which originate from other locations.”); Perritt v. Jenkins, No. 4:11-CV-23-MHS-ALM, 2011 WL 3511468, at *3 (E.D.Tex. July 18, 2011) (“Because the sources of proof originate from varied locations, this factor is neutral.”). Further, “a case should not be transferred if the only practical effect is to shift inconvenience from the moving party to the nonmoving party.” Goodman Co. v. A & H Supply, Inc., 396 F.Supp.2d 766, 776 (S.D.Tex.2005). Therefore, the Court finds this factor is neutral. (2) The Availability of Compulsory Process Federal Rule of Civil Procedure 45(b)(2) allows a federal court to compel a witness’ attendance at a trial or hearing by subpoena; however, the Court’s subpoena power is limited by Federal Rule of Civil Procedure 45(c)(3), to those witnesses who work or reside less than 100 miles from the courthouse. See Volkswagen II, 545 F.3d at 316. Defendants contend that numerous WalMart employees, who will be necessary witnesses with respect to the trademark issues in this case, will be outside the subpoena power of this Court since they will have to travel (1) more than 100 miles and (2) from another state. MOTION at 19. Plaintiff argues that Defendants have not shown why they will need testimony from Wal-Mart employees, when Medallion is the manufacturer of the allegedly infringing chips. SUR-REPLY at 9. Plaintiff asserts that it does not anticipate significant documents or" }, { "docid": "13448672", "title": "", "text": "from filing to trial and from filing to disposition in Western Arkansas than in Northern California. We first consider the convenience to the parties and witnesses. The district court found that the “only convenience factor” that definitively favored transfer was the relative ease of travel to Northern California for both parties and some potential nonparty witnesses, but did not weigh this factor heavily because of modern “travel conveniences.” Apple asserted that many of its potential witnesses are attorneys who work in the Cupertino, California, headquarters or abroad. Apple also identified several witnesses who are not attorneys, all of whom reside in Northern California. If Apple’s California witnesses were required to travel to Arkansas, Apple would likely incur expenses for airfare, meals and lodging, and losses in productivity from time spent away from work. See In re Volkswagen, 545 F.3d at 317. In addition, Apple’s witnesses will suffer the “personal costs associated with being away from work, family, and commu nity.” Id. These costs would be significantly minimized or avoided by transfer to Northern California. Luxpro identified a number of companies as nonparties with relevant information regarding the allegations. Apple contends that those nonparties would be inconvenienced by litigation in Western Arkansas. Unfortunately, the district court did not determine which of those nonparties likely possessed material information, see In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed.Cir.2009), but we know that at least one of these companies — Synnex Technology International Corporation — has its principal place of business in Fremont, California. Luxpro alleges that Synnex, an Apple supplier, “threatened a number of Taiwanese Luxpro distributors.” Synnex would be inconvenienced by sending witnesses to testify in Arkansas rather than in California. With respect to the remaining nonparty witnesses located in foreign countries, and Luxpro’s witnesses in Taiwan, the two venues are roughly equivalent, for we recognize that persons coming from abroad “will be required to travel a significant distance no matter where they testify.” Id. at 1344. The district court found that the location of documents did not favor transfer in “this age of electronic document transmissions.” Apple contends, and Luxpro" }, { "docid": "19237176", "title": "", "text": "operations relating to the Accused Games takes place in Nevada. Id. Aruze also directs its business development, marketing, and sales efforts from Nevada, and its gaming machines are tested, loaded with software, and prepared for distribution in Nevada. Id. Thus, Aruze is subject to personal jurisdiction in the District of Nevada, and MGT could have filed this action against Aruze in Nevada. C. Private Factors 1. Access to sources of proof Despite technological advances that certainly lighten the relative inconvenience of transporting large amounts of documents across the country, this factor remains a part of the transfer analysis. Volkswagen II, 545 F.3d at 316. Courts analyze this factor in light of the distance that documents, or other evidence, must be transported from their existing location to the trial venue. See id. This factor will turn upon which party will most probably have the greater volume of documents relevant to the litigation and their presumed location in relation to the transferee and transferor venues. “In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed.Cir.2009) (citation omitted); see also In re Nintendo Co., Ltd., 589 F.3d 1194, 1199 (Fed.Cir.2009) (granting writ of mandamus to transfer case to location of alleged infringer’s research and development-related documents and evidence). Presumably, the bulk of the discovery material relating to a corporate party is located at the corporate headquarters. See In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed.Cir.2010). a. WMS WMS affirms that its documents related to its accused gaming machines are located in Waukegan and Chicago in the Northern District of Illinois. These documents include those related to the design, development, manufacture, marketing, advertising, and financial-related information for its accused gaming machines. Docket No. 23, WMS Motion, at 11. MGT alleges, however, that “the relevant witnesses and evidence are spread all over the United States, especially in Mississippi,” and that they are “not clearly concentrated” in Illinois. Docket No. 38, MGT" }, { "docid": "22929271", "title": "", "text": "witnesses in Iowa and the East Coast. Because only some of the witnesses identified by the petitioners reside within the Northern District of California, the court also stated that the availability of compulsory process factor weighed only slightly in favor of transfer. Applying the central location rationale, the court additionally stated that the relative ease of access to sources of proof factor was neutral, noting that although some physical documents may be housed within the Northern District of California, other documents were housed outside of the venue, including the patent prosecution documents, which could be more easily transported from the East Coast to Texas. In assessing the “practical problems” factor, the court weighed significantly against transfer (1) that waste of judicial economy could be prevented by avoiding the uncertainty of whether the Northern District of California had personal jurisdiction over Sanofi with regard to the declaratory judgment action, and (2) that Genentech had previously filed a lawsuit in the Eastern District of Texas. The court also weighed against transfer the “court congestion” factor because it believed that the case could reach disposition quicker in the Eastern District of Texas. Finally, regarding the local interest factor, the court stated that this factor weighed only slightly in favor of transfer because, although Genentech had an interest in having this case tried where it conducted much of its research and development, the residents of the Eastern District of Texas also had an interest in the outcome of this case because the allegedly infringing products were sold within the district. The petitioners take issue with the application of these factors. We note that there is no dispute between the parties that this case could have been brought by Sanofi in the Northern District of California. There is also no dispute between the parties regarding the district court’s assessment of the familiarity of the forum factor and conflict of laws factor. i. Convenience of the Witnesses and Parties We start with an important factor, the convenience for and cost of attendance of witnesses. See generally Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F.Supp.2d" } ]

[ { "docid": "16514241", "title": "", "text": "to absolute judicial immunity: (1) the precise act complained of ... is a normal judicial function; (2) the events involved occurred in the judge’s chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity. Emory v. Peeler, 756 F.2d 1547, 1553 n. 14 (11th Cir.1985); see Harris v. Deveaux, 780 F.2d 911, 914 (11th Cir.1986); Harper v. Merckle, 638 F.2d 848, 858 (5th Cir.1981), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). In addition, courts have held that “[t]here are situations in which immunity must be afforded even though one or more of the ... factors fails to obtain.” Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986); accord Harris v. Deveaux, 780 F.2d 911, 914 (11th Cir.1986). There is no allegation that the justices acted or are acting in the “clear absence of all jurisdiction.” McFarland’s complaint acknowledges that the justices of the Supreme Court of Alabama have “ ‘inherent, plenary and continuing’ authority to determine who practices law_” (Compl. ¶8.) At all times relevant to the complaint, McFarland had been dealing with the defendant justices of the Alabama Supreme Court in their judicial capacities and with the respective members of the Alabama Bar and the Board of Bar Commissioners as agents of the Alabama Supreme Court. See Carroll v. Gross, 984 F.2d 392 (11th Cir.) (affirming the district court’s dismissal of § 1983 action against Florida state bar officials charged with violating plaintiffs right to due process), cert. denied, - U.S. -, 114 S.Ct. 254, 126 L.Ed.2d 206 (1993); Slavin v. Curry, 574 F.2d 1256, 1266 (5th Cir.1978) (finding that the members of state bar grievance committee were immune from suit because they acted as arm of state supreme court), overruled on other grounds, Sparks v. Duval County Ranch, 604 F.2d 976, 978 (1979) (en banc), aff'd sub nom. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d" } ]

[ { "docid": "4952755", "title": "", "text": "injunctive relief. In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court held that: a suit to enjoin a state officer from acting pursuant to an allegedly unconstitutional state statute was not barred by the Eleventh Amendment. The Court reasoned that if the officer was acting pursuant to an unconstitutional statute, he was not protected by the Eleventh Amendment because the state authorization was invalid. The Supreme Court has consistently reiterated that the Eleventh Amendment does not preclude prospective relief against a state officer to remedy an ongoing violation of federal law. See Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986); Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1986); Milliken v. Bradley, 433 U.S. 267, 289-90, 97 S.Ct. 2749, 2761-62, 53 L.Ed.2d 745 (1977); Edelman v. Jordan, 415 U.S. 651, 664-68, 94 S.Ct. 1347, 1356-58, 39 L.Ed.2d 662 (1974). Therefore, if Count 2 is interpreted as a facial challenge requesting solely injunctive relief, it would not be barred by the Eleventh Amendment. Nevertheless, Count 2 must be dismissed as discussed in Section D of this opinion because the rules governing judicial discipline are not constitutionally infirm. C. Absolute Judicial Immunity Defendants also argue that plaintiffs claims are barred by the doctrine of absolute judicial immunity. The doctrine of judicial immunity is well-established. In order to preserve the integrity of the judiciary, judges must be free to act without fear of personal reprisal. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Conse quently, judges axe absolutely immune from liability or damages for acts committed within their judicial discretion. Pierson v. Ray, 386 U.S. 547, 558-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). In order for judicial immunity to apply, the action must be a judicial act, and the judge must have had jurisdiction over the subject matter before him when he acted. Stump, 435 U.S. at 355-57, 98 S.Ct. at 1104-05. Because the suit is against the defendants in their official capacities, the defense of judicial" }, { "docid": "20523610", "title": "", "text": "Mr. Mikhail’s conspiracy or bad faith allegations against the judges are anything more than conclusory, see also supra subsection III.D.2, it will dismiss with prejudice any remaining damages claims against the judges because of judicial immunity. Judges are absolutely “immune from suit under section 1983 for monetary damages arising from their judicial acts.” Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir.2000) (citing Mireles v. Waco, 502 U.S. 9, 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Forrester v. White, 484 U.S. 219, 225-27, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)); see also Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir.2006) (per curiam). This immunity, and the reasons for it, are well established by the decisions of the Supreme Court and the courts of appeals, including the Third Circuit Court of Appeals, see, e.g., Gallas, 211 F.3d at 768-69, so this Court will not rehash those principles here. It suffices to say that so long as (1) the judge’s actions are taken in his judicial capacity (determined by the nature of the acts themselves) and (2) the judge has some semblance of jurisdiction over the acts, he will have immunity for them. See id. Conceptual difficulty, if there is any, pertains “primarily [to] attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges.” Forrester, 484 U.S. at 227, 108 S.Ct. 538. Neither exception can be argued credibly here. All of the judges’ acts that Mr. Mikhail challenges took place in the PFA, custody, and divorce proceedings. Even if they take place ex parte and without notice or a hearing, acts may still be judicial in nature. Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). And “[c]ourts applying Stump v. Sparkman have interpreted the Court as requiring a showing of an absence of subject matter jurisdiction to defeat a judge’s assertion of immunity.” Dykes v. Hosemann, 776 F.2d 942, 948 (11th Cir.1985)" }, { "docid": "17313737", "title": "", "text": "this time. Plaintiffs seek declaratory, injunctive, and damage remedies from both the Justices and the Colegio. (1) From Damages It is clear that judges are immune from liability for damages for acts committed within their judicial jurisdiction notwithstanding that the claim for damages is brought under 42 U.S.C. § 1983. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). There is no question in our mind but that the actions challenged vis-a-vis the Justices, whether as regards the disbarment proceedings of Plaintiffs Schneider and Ramos, or as related to their power to regulate the bar and administer Law No. 43 and related legislation, are judicial and quasi-judicial in nature thus immunizing the Justices from liability for damages. Therefore, all claims for damages against the Justices must be DISMISSED. The damage claims against Colegio must be considered in a bifurcated manner. Colegio alleges that it is entitled to prosecutorial immunity pursuant to Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). That case extended to § 1983 actions the common law doctrine of absolute immunity from damages for “initiating .. . and ... presenting the State’s case.” Id. at 424 U.S. at 431, 96 S.Ct. at 995. It appears evident that in filing charges against Schneider-Ramos in the Puerto Rico Court, the Colegio was acting in a prosecutorial capacity pursuant to the requirements of Section 2(g) of Law No. 43, 4 LPRA 773(g). Thus, the Colegio is immune from any liability for damages by reason of its actions in initiating and prosecuting Plaintiffs Schneider and Ramos’ disbarment before the Puerto Rico Court. Any such claims for damages are DISMISSED. Of course the damage claims against Colegio are not limited to their prosecutorial activities. Both as to Plaintiffs Schneider and Ramos, as well as to Plaintiffs Romany, Sous and Oreste Ramos, there are damage claims based on the use to which the Colegio has" }, { "docid": "16577993", "title": "", "text": "Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1871). The protection of immunity is not pierced by allegations that the judge acted in bad faith or with malice, Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), even though “unfairness and injustice to a litigant may result on occasion,” Mireles, 502 U.S. at 9, 112 S.Ct. 286. The United States Supreme Court has expressly applied the doctrine of judicial immunity to actions brought pursuant to 42 U.S.C. § 1983. See Pierson, 386 U.S. at 547, 87 S.Ct. 1213. The Supreme Court has developed a two-part test for determining whether a judge is entitled to absolute immunity. See Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). First, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’ ” Id. at 356-57, 98 S.Ct. 1099 (emphasis added) (quoting Bradley, 80 U.S. (13 Wall.) at 351 (1871)). Second, a judge is immune only for actions performed in his judicial capacity. Id. at 360-63, 98 S.Ct. 1099; see also Maestri v. Jutkofsky, 860 F.2d 50 (2d Cir.1988) (finding no immunity where a town justice issued an arrest warrant for conduct which took place neither within nor in a town adjacent to his town, thereby acting in the absence of all jurisdiction); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir.1974) (finding no immunity where judge assaulted litigant). Stump further distinguished between an “excess of jurisdiction” and “the clear absence of all jurisdiction over the subject matter.” Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the" }, { "docid": "12526265", "title": "", "text": "appellate courts. As a result, any claim against the parish is frivolous. C. Claims Against Jerrold Peterson In his lawsuit, Severin named Peterson as a defendant. “Federal law ... relies on state law to determine if a party can be named as a defendant to a lawsuit. Louisiana law does not allow suits against the deceased.” Martinez v. United States, Civ. Action No. 96-4072, 1998 WL 92248, at *2 (E.D.La. Mar.2, 1998); see also Campbell v. Travelers Ins., Civ. Action No. 06-9068, 2008 WL 145048, at *1 (E.D.La. Jan.14, 2008). Peterson was deceased at the time Severin filed this action, therefore the claim against Peterson must be dismissed. D. Claims Against the Judges Additionally, Severin named as defendants the above named judges of the Louisiana Fifth Circuit Court of Appeal. He sought monetary damages, declaratory relief, and injunctive relief. 1. Monetary Damages It is well established that judges enjoy absolute judicial immunity from lawsuits that cannot be overcome by allegations of bad faith or malice. Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Judicial immunity is clearly applicable in cases, such as the instant one, brought pursuant to 42 U.S.C. § 1983. Sparkman, 435 U.S. at 356, 98 S.Ct. 1099; Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The Supreme Court has recognized only two instances in which judicial immunity is inapplicable. “First a judge is not immune from liability for nonjudicial actions, i.e. actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions through judicial in nature, taken in the complete absence of all jurisdictions.” Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Regarding the first exception, the Supreme Court has noted: The relevant cases demonstrate that the factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e. whether they dealt with the judge in his" }, { "docid": "5018053", "title": "", "text": "has alleged no basis upon which a fact finder could rationally infer that defendant Judge Mangano and the associate justices of the Second Department acted outside their proper jurisdictional capacities in adjudicating Sassower’s disciplinary petition and claims raised in relation thereto, let alone that they acted in the “clear absence of all jurisdiction.” Stump, 435 U.S. at 356-57, 98 S.Ct. at 1104-5; see also Pierson, 386 U.S. at 554, 87 S.Ct. at 1217. Absolute immunity likewise bars Sassower’s claims against the non-judicial defendants. Under the doctrine of quasi-judicial immunity, absolute immunity extends to administrative officials performing discretionary acts of a judicial nature. See Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985); Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 2914, 57 L.Ed.2d 895 (1978); Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988). Here, quasi-judicial immunity, which bars claims against administrative law judges and hearing examiners performing judicial functions, protects hearing officer Galfimt in his individual capacity from liability. See Cleavinger, 474 U.S. at 200, 106 S.Ct. at 500. In addition, because state bar disciplinary proceedings are clearly judicial in nature, see Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433-34, 102 S.Ct. 2515, 2522, 73 L.Ed.2d 116 (1982), quasi-judicial immunity bars claims against state bar disciplinary committee members Casella, Sumber and the members of the Grievance Committee. See Klapper v. Guria, 153 Misc.2d 726, 729, 582 N.Y.S.2d 892, 895 (1992) (quasi-judicial immunity bars action against counsel to state bar disciplinary committee and its members for prosecution and adjudication of disciplinary petition). In addition, Sassower’s claims for damages against defendants in their official capacities are barred by the Eleventh Amendment, which precludes suits brought in federal court against a state or its agency, where, as here, there is no express statutory waiver or consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); Trotman v. Palisades Interstate" }, { "docid": "17313736", "title": "", "text": "supra at p. 33. There is a clear distinction between allegations to the effect that a litigant was denied due process or a meaningful hearing vis-a-vis allegations that such actions are the result of a conspiracy. It may be that Plaintiffs Schneider-Ramos have alleged facts to support the lack of due process or of a meaningful hearing. It is another thing to say that they have met the initial burden of alleging facts to the effect that this situation resulted from a conspiracy. Cf. Slotnick v. Staviskey, supra, at p. 34. See also Rosaly v. Ignacio, supra; Francis-Sobel v. Univ. of Maine, supra; Henzel v. Gerstein, 608 F.2d 654 (C.A. 5, 1979); Mosher v. Saalfeld, 589 F.2d 438 (C.A. 9, 1978) (per curiam). The conspiracy allegations against Defendant Justices and the Colegio are thus DISMISSED. c. The Immunity Issues Because the immunity issues raised by the Justices and the Colegio raise issues related to whether this Court can grant any relief to Plaintiffs in the nonconspiracy allegations, it is appropriate that they be addressed at this time. Plaintiffs seek declaratory, injunctive, and damage remedies from both the Justices and the Colegio. (1) From Damages It is clear that judges are immune from liability for damages for acts committed within their judicial jurisdiction notwithstanding that the claim for damages is brought under 42 U.S.C. § 1983. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). There is no question in our mind but that the actions challenged vis-a-vis the Justices, whether as regards the disbarment proceedings of Plaintiffs Schneider and Ramos, or as related to their power to regulate the bar and administer Law No. 43 and related legislation, are judicial and quasi-judicial in nature thus immunizing the Justices from liability for damages. Therefore, all claims for damages against the Justices must be DISMISSED. The damage claims against Colegio must be considered in a bifurcated manner. Colegio" }, { "docid": "16500326", "title": "", "text": "v. Travis, 171 F.3d 757, 760 (2d Cir.1999). . Roe v. Johnson, 334 F.Supp.2d 415, 423 (S.D.N.Y.2004) (citing Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (hearing examiners and administrative law judges); Montero, 171 F.3d at 760 (parole board officials); Oliva v. Heller, 839 F.2d 37, 40 (2d Cir.1988) (law clerks)). . Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.2005). Accord Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (\"A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’ \"). . See Sassower v. Mangano, 927 F.Supp. 113, 120 (S.D.N.Y.1996) (\"Under the doctrine of quasi-judicial immunity, absolute immunity extends to administrative officials performing discretionary acts of a judicial nature.”). . Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 433-34, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (\"It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as ‘judicial’ in nature.”). . See Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (“We conclude that judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.”)- . Velez v. Levy, 401 F.3d 75, 100 (2d Cir.2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). . Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir.2001) (quoting Kaminsky v. Rosenblum, 929 F.2d 922, 924-25 (2d Cir.1991)). . Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). . Williams v. City of Mount Vernon, 428 F.Supp.2d 146, 153 n. 2 (S.D.N.Y.2006). . Mitchell v. Forsyth, 472 U.S. 511, 556 n. 10, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (Brennan, J., concurring in part and dissenting in" }, { "docid": "17282624", "title": "", "text": "absence of all jurisdiction,” Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.2005) (quoting Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)), or “if the action in question is not judicial in nature, as when the judge performs an administrative, legislative, or executive act.” Id. Plaintiffs, however, do not seek damages against the Justices. Instead, they seek declaratory (both retroactive and prospective) and injunctive relief only. Although Plaintiffs emphasize this point in their opposition papers (see, e.g., Pls.’ Opp’n at 8, 14), the Justices continue to argue in their Reply Memorandum that they are immune from “liability” under the doctrine of absolute immunity and fail to address Plaintiffs’ actual claims. The Supreme Court has held that the doctrine of absolute immunity does not bar claims for prospective declaratory or injunctive relief. See Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); Supreme Court v. Consumers Union, Inc., 446 U.S. 719, 735, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (“[W]e have never held that judicial immunity absolutely insulates judges from declaratory or injunctive relief with respect to their judicial acts.”). In 1996, the Congress, however, effectively reversed the Courts’ rulings with regard to injunctive relief with the enactment of the Federal Courts Improvement Act of 1996, Pub.L. No. 104-317, 110 Stat. 3847 (1996) (amending 42 U.S.C. § 1983). As amended, § 1983 now provides that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Thus, the doctrine of absolute judicial immunity now extends to cover suits against judges where the plaintiff seeks not only monetary relief, but injunctive relief as well, unless preceded by a declaration, or by a showing that such declaratory relief is unavailable. See, e.g., Jacobs v. Mostow, 271 Fed.Appx. 85, 88 (2d Cir.2008) (unpublished opinion) (affirming dismissal of plaintiff’s claims for prospective injunctive relief under Rule 12(b)(6) where complaint failed to allege “a violation of a" }, { "docid": "722060", "title": "", "text": "Family Court of Suffolk County and William Rodriguez and William Ekadis are Family Court Hearing Officers in Suffolk County. It is well settled that judicial officers performing judicial functions within their jurisdictions are granted absolute immunity (See Dorman v. Higgins, 821 F.2d 133, 137 [2d Cir.1987] [citing Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967) ]; see also N.Y.Fam.Ct. Act § 145 [statutory provision for judicial immunity within the Family Court]). The Supreme Court clearly stated that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction” (Pierson, supra, 386 U.S. at p. 554, 87 S.Ct. at p. 1217; accord Cleavinger v. Saxner, 474 U.S. 193, 199, 106 S.Ct. 496, 499-500, 88 L.Ed.2d 507 [1985] [quoting Pierson ]). Absolute immunity applies “even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences’ ” (Pierson, supra, 386 U.S. at p. 554, 87 S.Ct. at p. 1218). As stated by the Supreme Court, the proper inquiry “in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jiorisdiction over the subject matter before him” (Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 [1978] [emphasis added]). The determination about whether a judge has jurisdiction must be broadly construed and “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction’ ” (Id. at p. 356-57, 98 S.Ct. at p. 1105 [citation omitted]). The Second Circuit has even sustained a finding of absolute judicial immunity in a" }, { "docid": "22427393", "title": "", "text": "457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). Judges are clearly among those officials who are entitled to such immunity. The purpose of the doctrine is to benefit the public, “whose inter est it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). The Supreme Court has recognized that “the loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus.” Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978) (citing Pierson, 386 U.S. at 554, 87 S.Ct. at 1218). Therefore, absolute immunity is necessary so that judges can perform their functions without harassment or intimidation. Further, it is well settled that the doctrine of judicial immunity is applicable in actions, such as the case at bar, that are brought pursuant to 42 U.S.C. § 1983. Pierson, 386 U.S. at 554, 87 S.Ct. at 1218; Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978). The appropriate inquiry in determining whether a particular judge is immune is whether the challenged action was “judicial,” and whether at the time the challenged action was taken, the judge had subject matter jurisdiction. See Stump, 435 U.S. at 356, 98 S.Ct. at 1104-05. Stated differently, judges are liable only when they act in “clear absence of all jurisdiction”; they are absolutely immune even when their action is erroneous, malicious, or in excess of their judicial authority. Id. at 356-57, 98 S.Ct. at 1104-05. We cannot agree with Van Sickle that Judges Sullivan, Babcock, Sternberg, and Tursi acted in clear absence of jurisdiction. A judgment granting a motion for summary judgment and the affirmance of such judgment are judicial acts within the jurisdiction of the courts on which these judges sit. The judges’ alleged failure to rule on Van Sickle’s general allegations of slander can at best be characterized as erroneous, which will not subject them to civil liability." }, { "docid": "17282623", "title": "", "text": "district court proceedings commenced.” Id. at 85. The first and fourth requirements are procedural, whereas the second and third are substantive. Id. If all four requirements are met, federal subject matter jurisdiction is barred by Rook-er-Feldman. Here, the Rooker-Feldman doctrine is inapplicable because the procedural requirements outlined above have not been met. The First Amended Complaint does not allege that Plaintiffs “lost” in state court nor does it allege that a state-court judgment was rendered before this federal action was commenced. Instead, it alleges that the state proceeding is ongoing. Accordingly, the Justices’ motion to dismiss Plaintiffs’ claims on the basis of Rooker-Feldman is denied. Id. at 85 (“Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing state-court litigation.”). B. Absolute Immunity The Justices also argue that Plaintiffs’ claims are barred by the doctrine of absolute judicial immunity. Under that doctrine, “judges generally have absolute immunity from suits for money damages for their judicial actions,” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir.2009), unless he or she “acted in the clear absence of all jurisdiction,” Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.2005) (quoting Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)), or “if the action in question is not judicial in nature, as when the judge performs an administrative, legislative, or executive act.” Id. Plaintiffs, however, do not seek damages against the Justices. Instead, they seek declaratory (both retroactive and prospective) and injunctive relief only. Although Plaintiffs emphasize this point in their opposition papers (see, e.g., Pls.’ Opp’n at 8, 14), the Justices continue to argue in their Reply Memorandum that they are immune from “liability” under the doctrine of absolute immunity and fail to address Plaintiffs’ actual claims. The Supreme Court has held that the doctrine of absolute immunity does not bar claims for prospective declaratory or injunctive relief. See Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); Supreme Court v. Consumers Union, Inc., 446 U.S. 719, 735, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (“[W]e have never held that judicial immunity" }, { "docid": "22177130", "title": "", "text": "all, of the defendants who had been served with complaint is not a final order). To preserve his right to appeal the dismissal of Judge Hernandez, Harvey did not need to list Judge Hernandez in his second amended complaint, nor did he need to specifically list the July 8, 1997, order in his notice of appeal. Rather, when Harvey appealed the district court’s October 13, 1998, final judgment and order, he drew into question all of the court’s earlier, non-final orders, including the July 8, 1997, non-final order dismissing Judge Hernandez. See United Ass’n of Journeymen, 128 F.3d at 1322. B. Applicability of Doctrine of Judicial Immunity “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 553-554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). This “immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (citations omitted). Harvey admits that Judge Hernandez’s actions “might have been judicial in nature,” but contends that Judge Hernandez is not entitled to immunity because he “acted in complete absence of jurisdiction” when he ordered the disposal of Harvey’s property without notice and a hearing. We disagree. The Supreme Court has clearly held that as long as a judge has jurisdiction to perform the “general act” in question, he or she is immune “however erroneous the act may have been, ... however injurious in its consequences it may have proved to the plaintiff’ and irrespective of the judge’s motivation. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985); see Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (holding that because “some of the most difficult and embarrassing questions which" }, { "docid": "11791013", "title": "", "text": "v. Jarvis, 460 F.2d 551, 553 (2d Cir. 1972). As plaintiffs are now represented by counsel, the usual rule that the pleading requirements are considerably more relaxed for plaintiffs proceeding pro se, see Williams v. Vincent, 508 F.2d 541, 543 (2d Cir. 1974), is inapplicable. A. Defendant Daronco Defendant Hon. Richard Daronco was, during the events described in the amended complaint, a County Judge of Westchester County, State of New York. The amended complaint charges defendant Daronco with committing certain improprieties in the course of presiding over the above-described criminal trial of Luis Gutierrez. Amended Complaint at ¶¶ 18-19. Defendant Daronco’s Rule 12(b)(6) motion to dismiss the amended complaint is based on the doctrine of judicial immunity. It is well established that judges of courts of general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978). This doctrine of judicial immunity is fully applicable to suits, such as the present action, maintained under § 1983. Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). The immunity conferred by this rule is only forfeited when the judge in question acts in the clear absence of any jurisdiction. Stump, supra, 435 U.S. at 356-57, 98 S.Ct. at 1104-05; Heimbach v. Village of Lyons, 597 F.2d 344, 346 (2d Cir. 1979). The alleged conduct of defendant Daronco described by the amended complaint all occurred during the time in which he presided over the trial and sentencing of Luis Gutierrez. It is not contended that defendant Daronco was without jurisdiction to so preside. Accordingly, the Court finds the doctrine of judicial immunity to be applicable and dismissal of the action against defendant Daronco to be warranted. B. Defendants McKay, Sagrati and Stewart Defendants Patrick McKay and Diva Sagrati were employed as court reporters in the County Court of Westchester County during Luis Gutierrez’ trial in March 1976. Defendant Alice Stewart was" }, { "docid": "4952756", "title": "", "text": "be barred by the Eleventh Amendment. Nevertheless, Count 2 must be dismissed as discussed in Section D of this opinion because the rules governing judicial discipline are not constitutionally infirm. C. Absolute Judicial Immunity Defendants also argue that plaintiffs claims are barred by the doctrine of absolute judicial immunity. The doctrine of judicial immunity is well-established. In order to preserve the integrity of the judiciary, judges must be free to act without fear of personal reprisal. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Conse quently, judges axe absolutely immune from liability or damages for acts committed within their judicial discretion. Pierson v. Ray, 386 U.S. 547, 558-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). In order for judicial immunity to apply, the action must be a judicial act, and the judge must have had jurisdiction over the subject matter before him when he acted. Stump, 435 U.S. at 355-57, 98 S.Ct. at 1104-05. Because the suit is against the defendants in their official capacities, the defense of judicial immunity does not come into play. As discussed above, a suit against state officers in their official capacities is a suit against the state itself. Therefore, personal immunities are not available. See Kentucky, 473 U.S. at 166-67, 105 S.Ct. at 3105-06. “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Id. at 167, 105 S.Ct. at 3106. Assuming that this suit were an action against the defendants in their individual capacities, the New Jersey Supreme Court and Justice Wilentz would be entitled to absolute judicial immunity. Justice Wilentz and the New Jersey Supreme Court were acting in a judicial capacity both when they issued the reprimand and when they denied the motion for reconsideration. As discussed above, the Supreme Court has jurisdiction over judicial discipline. Therefore, Justice Wilentz and the New Jersey Supreme Court satisfy the requirements for absolute judicial immunity. It is likely that absolute judicial immunity would also encompass the actions of the ACJC" }, { "docid": "17836018", "title": "", "text": "committed by a judge might on occasion be remedied by holding the judge a tortfeasor. Much graver harm would be done to the justice system and consequently to the social fabric, however, by requiring judges to account for the reasons why they took judicial action, and to absolve themselves from charges of improper motive or other impropriety. Absolute judicial immunity is an essential shield in a justice system that depends on its judges to “exercise their functions with independence and without fear of consequences,” not an apologia for the errant behavior of judges who act injudiciously or malevolently. To provide the broad protection that these important policies require, the Supreme Court has ruled that absolute immunity extends to all judicial acts unless such acts fall clearly outside the judge’s subject-matter jurisdiction. Stump v. Sparkman, 435 U.S. 349, 359-64, 98 S.Ct. 1099, 1106-08, 55 L.Ed.2d 331 (1978). All parties agree that Sams’s acts as magistrate, including issuing the warrant and setting bond, are judicial acts for which he is absolutely immune from liability. We therefore turn our attention to Sams’s acts in investigating the pipecutting, and in swearing out the complaint without probable cause and with malice. We apply this circuit’s four-part test to determine whether these actions constituted judicial acts, and conclude that they do not; These acts were not part of a normal judicial function, but were plainly executive in nature; they did not center around any pending case, but instead initiated the case; they did not occur in the judge’s chambers; and they did not involve Sams’s official capacity as a judge. See Harper v. Merckle, 638 F.2d 848, 858 (5th Cir.1981), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1982); McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972); Ammons v. Baldwin, 705 F.2d 1445, 1447-48 (5th Cir.1983). See also Henzel v. Gerstein, 608 F.2d 654 (5th Cir.1979) (the “absence-of-jurisdiction” exception refers to situations in which the judge acts purely in a private and nonjudicial capacity). Sams’s acts in initiating the proceedings that led to Thomas’s arrest, therefore, are not cloaked in absolute immunity." }, { "docid": "5018051", "title": "", "text": "see also Winters v. Lavine, 574 F.2d 46, 57 (2d Cir.1978). Because all of Sassower’s claims were repeatedly raised and rejected in state court proceedings, they are barred from being relitigated in the instant action. See Tang v. Appellate Division, 487 F.2d 138 (2d Cir.1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974). Sassower challenged the constitutionality of the June 1991 suspension order and the relevant statutory disciplinary provisions in the state trial and appellate courts as well as in the United States Supreme Court. Moreover, for the purposes of res judicata, the dismissal of Sassower’s January 24, 1993 appeal as of right by the Court of Appeals on the ground that no substantial constitutional question was involved, was a final adjudication on the merits. See Turco v. Monroe County Bar Ass’n, 554 F.2d 515, 521 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 95 (1977); McCune v. Frank, 521 F.2d 1152, 1155 (2d Cir.1975); Olitt v. Murphy, 453 F.Supp. 354, 359 (S.D.N.Y.), aff'd, 591 F.2d 1331 (2d Cir.1978), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979). In addition, Sassower’s claims against defendants in their individual capacities are barred by absolute immunity. The doctrine of absolute judicial immunity bars claims against judges for actions not made “‘in the clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7, 98 S.Ct. 1099, 1104L-05, 55 L.Ed.2d 331 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-52, 20 L.Ed. 646 (1871)). The “clear absence of all jurisdiction” has been narrowly construed to encompass only acts taken outside the scope of all authority, as in the case of a probate judge adjudicating a criminal trial. See Stump, 435 U.S. at 357, n. 7, 98 S.Ct. at 1105, n. 7; Pierson v. Ray, 386 U.S. 547, 553, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). In this case, the Second Department is statutorily authorized to suspend from practice any attorney engaged in professional misconduct, see N.Y.Jud.Law § 90(2) (McKinney 1983), and to hear related challenges. As a result, Sassower" }, { "docid": "22356715", "title": "", "text": "criminal proceedings are over, however, the equitable relief sought is no longer available. Only the monetary relief sought in his amended complaint may be available. Thus, the propriety of the district court’s dismissal without leave to amend turns on whether immunity bars recovery of money damages from any of the defendants. If judicial and prosecutorial immunity bar recovery, no amendment could cure the deficiency and the action was properly terminated on a motion to dismiss. Judges are immune from damage actions for judicial acts taken within the jurisdiction of their courts. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872). Title 42 U.S.C. § 1983 (1982) was not intended to abolish the doctrine of judicial immunity. Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). Judicial immunity applies “however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” Cleavinger v. Saxner, — U.S.-, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985) (quoting Bradley, 80 U.S. (13 Wall.) at 347). Prosecutors are also entitled, to absolute immunity from section 1983 claims. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976). Such immunity applies even if it leaves “the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” Id. See also Campbell v. Maine, 787 F.2d 776, 778 (1st Cir.1986) (no bad faith exception to absolute immunity of prosecutor). The immunity afforded judges and prosecutors is not absolute. A judge lacks immunity where he acts in the “clear absence of all jurisdiction,” Bradley, 80 U.S. (13 Wall.) at 351, or performs an act that is not “judicial” in nature. Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978). The factors relevant in determining whether an act is judicial “relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the" }, { "docid": "5018052", "title": "", "text": "(2d Cir.1978), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979). In addition, Sassower’s claims against defendants in their individual capacities are barred by absolute immunity. The doctrine of absolute judicial immunity bars claims against judges for actions not made “‘in the clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7, 98 S.Ct. 1099, 1104L-05, 55 L.Ed.2d 331 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-52, 20 L.Ed. 646 (1871)). The “clear absence of all jurisdiction” has been narrowly construed to encompass only acts taken outside the scope of all authority, as in the case of a probate judge adjudicating a criminal trial. See Stump, 435 U.S. at 357, n. 7, 98 S.Ct. at 1105, n. 7; Pierson v. Ray, 386 U.S. 547, 553, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). In this case, the Second Department is statutorily authorized to suspend from practice any attorney engaged in professional misconduct, see N.Y.Jud.Law § 90(2) (McKinney 1983), and to hear related challenges. As a result, Sassower has alleged no basis upon which a fact finder could rationally infer that defendant Judge Mangano and the associate justices of the Second Department acted outside their proper jurisdictional capacities in adjudicating Sassower’s disciplinary petition and claims raised in relation thereto, let alone that they acted in the “clear absence of all jurisdiction.” Stump, 435 U.S. at 356-57, 98 S.Ct. at 1104-5; see also Pierson, 386 U.S. at 554, 87 S.Ct. at 1217. Absolute immunity likewise bars Sassower’s claims against the non-judicial defendants. Under the doctrine of quasi-judicial immunity, absolute immunity extends to administrative officials performing discretionary acts of a judicial nature. See Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985); Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 2914, 57 L.Ed.2d 895 (1978); Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988). Here, quasi-judicial immunity, which bars claims against administrative law judges and hearing examiners performing judicial functions, protects hearing officer Galfimt in his individual capacity from liability. See Cleavinger, 474 U.S. at 200, 106" }, { "docid": "23212984", "title": "", "text": "of prosecutorial immunity. The actions complained of were a necessary and integral part of a prosecutor’s role in the judicial system. We are not persuaded by the plaintiff’s argument that immunity should not extend to a prosecutor’s conduct in handling appeals. The policy underlying a grant of immunity is the same in both situations — § 1983 damage liability would “prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Imbler v. Pachtman, 424 U.S. at 427-28, 96 S.Ct. at 993-94. Fear of civil liability could hinder a prosecutor’s judgment in conducting a case at the appellate level as well as at the trial level. II. THE JUDGE Henzel maintains that Turner, the trial judge, is liable under § 1983 for trying Henzel when he had no jurisdiction over the case and for failing to correct certain errors that occurred at trial. A judge is absolutely immune from § 1983 damage liability for acts within his judicial capacity, but is not immune when he acts in the absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331, rehearing denied, 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978). Henzel urges that Judge Turner acted in the absence of jurisdiction since the crime, if committed at all, was committed in New York. This is not the meaning of the “absence of jurisdiction” exception; rather, the exception refers to situations in which a judge acts purely in a private and non-judicial capacity. See id.; Lucarell v. McNair, 453 F.2d 836, 838 (6th Cir. 1972) (judge assaulted individual in courtroom). Judge Turner was clearly acting within his judicial capacity when he performed the acts that are the subject of this suit. III. THE SUPERVISORY OFFICIALS The claim against Purdy is based on allegations that Henzel was denied medical treatment while confined in the Dade County jail. Henzel has made similar claims against Wainwright, director of the Florida Prison System, alleging that he was denied medical treatment and the right to practice his religion" } ]

[ { "docid": "22437748", "title": "", "text": "the Fourth Amendment. B. Further Detention and Questioning Mr. Hunnieutt argues that questioning about guns or drugs was “far outside” the scope of the initial stop, and without any subsequent events to lead a reasonable officer to believe that a gun or drug violation was occurring. An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer cheek, and issue a citation. See United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). The investigative detention usually must “last no longer than is necessary to effectuate the purpose of the stop,” and “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter. See GonzalezLerma, 14 F.3d at 1483. The officer had not returned Mr. Hunnicutt’s license at the time he asked about guns and drugs, so further questioning unrelated to the initial stop must have been supported by an objectively reasonable suspicion of illegal activity. See id.; United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993) (holding that encounter cannot become consensual while officer retains driver’s documents). A variety of factors may contribute to the formation of an objectively reasonable suspicion of illegal activity. Among those factors that have justified further questioning are having no proof of . ownership of the vehicle, having no proof of authority to operate the vehicle, and inconsistent statements about destination. See United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995); Gonzalez-Lerma, 14 F.3d at 1483-84; United States" } ]

[ { "docid": "22925205", "title": "", "text": "travel itinerary and to request his license and registration exceeded the scope of the stop’s underlying justification. The government nevertheless contends that Tenth Circuit precedent entitles Trooper Avery to engage in such \"minimally intrusive\" conduct. Though we have held in several cases that an officer conducting a routine traffic stop may inquire about \"identity and travel plans,\" United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989), and may \"request a driver's license and vehicle registration, run a computer check, and issue a citation,\" United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988); see also United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993), these cases-cited by the government-are inapposite. They all involve situations in which the officer, at the time he or she asks questions or requests the driver's license and registration, still has some \"objectively reasonable articulable suspicion\" that a traffic violation \"has occurred or is occurring.\" Soto, 988 F.2d at 1554 (speeding); see also United States v. Trimble, 986 F.2d 394 (10th Cir.1993) (expired license plate), cert. denied, - U.S. -, 113 S.Ct. 2943, 124 L.Ed.2d 691 (1993); Rivera, 867 F.2d at 1263 (tailgating); Guzman, 864 F.2d at 1519 (seat belt violation). Such cases stand in sharp contrast to the facts of the instant case: Trooper Avery's reasonable suspicion regarding the validity of Mr. McSwain's temporary registration sticker was completely dispelled prior to the time he questioned Mr. McSwain and requested documentation. Cf. United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir.1992) (holding that reasonable suspicion of illegal alien smuggling was dispelled as soon as border patrol agent determined that no ifiegal aliens were in the vehicle). Having no \"objectively reasonable articulable suspicion that illegal activity ha[d] occurred or [was] occurring,\" Soto, 988 F.2d at 1554, Trooper Avery's actions in questioning Mr. McSwain and requesting his license and registration exceed ed the limits of a lawful investigative detention and violated the Fourth Amendment. The government asserts that not allowing an officer to request a driver's license and registration in this type of case will require the officer to \"stop a vehicle, approach the vehicle" }, { "docid": "23613578", "title": "", "text": "v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995). b. Scope of the Questioning Ms. Bradford argues Trooper Peech’s actions were not reasonably related in scope to the stop because of his “detailed questioning” while she was seated in the patrol car and his further questioning after he gave her back her paperwork. See Aplt. Br. at 14. Neither contention has merit. While Trooper Peech was issuing the citation and running a computer check of Ms. Bradford’s records, he chatted with her about the nature of her trip. It is well-established that “[a] law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation.” United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). Moreover, we have held that during the stop, an officer may ask routine questions about the driver’s travel plans. See United States v. Williams, 271 F.3d 1262, 1267 (10th Cir.2001) (“[W]e have repeatedly held (as have other circuits) that questions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.”). Clearly, this was a routine traffic stop and Trooper Peech did not exceed its scope by asking about Ms. Bradford’s travel plans. After the purpose of the traffic stop is completed, further detention for purposes of questioning unrelated to the initial traffic stop is impermissible unless: (1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or (2) the initial detention has become a consensual encounter. See United States v. Cervine, 347 F.3d 865, 868-69 (10th Cir.2003). The questioning here was valid under both rationales. i. Reasonable, Articulable Suspicion When determining whether reasonable suspicion exists, we look to the “totality of the circumstances” to see whether the officer had a “particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (further quotation omitted). It is important to note that many aspects of Ms. Bradford’s behavior, standing alone, would be insufficient to establish reasonable, articulable suspicion. Some items motorists" }, { "docid": "22085305", "title": "", "text": "reasonably warrant that intrusion” (id. at 21, 88 S.Ct. at 1880) — something less than probable cause. Royer, 460 U.S. at 500, 103 S.Ct. at 1325 counsels that the permissible scope of any such “investigative detention” depends on “the particular facts and circumstances of each case,” but that in every case it “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” In the context of traffic stops, we frequently hark back to the succinct summary in United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) (citations omitted), most recently quoted in United States v. Fernandez, 18 F.3d 874, 878 (10th Cir.1994): An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994) teaches that further questioning and the concomitant detention of a driver are permissible in either of two circumstances: (1) during the course of the traffic stop the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity (see, e.g., United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993); United States v. Horn, 970 F.2d 728, 732 (10th Cir.1992)) or (2)the driver voluntarily consents to the officer’s additional questioning. In the first situation a Fourth Amendment seizure has taken place, but it is reasonable and consequently constitutional. In the second there is no seizure, and hence the Fourth Amendment’s strictures are not implicated. But if neither of those factors is present, evidence derived from further questioning (or, a forti-ori, from an ensuing search) is impermissibly tainted in Fourth Amendment terms. On appeal Sandoval argues that his Fourth Amendment right to be free from unreasonable searches and seizures was violated because neither of the two described circumstances was present, rendering his continued detention and" }, { "docid": "1344687", "title": "", "text": "ceiling area. The patrol car was also equipped with a microphone to record radio traffic; and Rule had a body microphone as well. . Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (stating that a traffic stop is reasonable \"where the police have probable cause to believe that a traffic violation has occurred.”); U.S. v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998) (citing United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995)) (reasonable articulable suspicion of traffic violation is valid basis for traffic stop). . K.S.A. § 8-1522. . 79 F.3d 973, 977 (10th Cir.1996) (analyzing Utah Code Ann. § 41-6-61(1) which requires that vehicles operate \"as nearly as practical entirely within a single lane”); See also United States v. Ochoa, 4 F.Supp.2d 1007, 1011— 12 (D.Kan.1998) (traffic stop was not justified because the vehicle had strayed onto the shoulder only once, there was no evidence concerning the weather or road conditions, inconsistent evidence concerning the traffic conditions, as well as evidence that the positioning of the trooper's car may have caused the driver to stray onto the shoulder). . Gregory, 79 F.3d at 978. . 133 F.3d 933, 1998 WL 8227 (10th Cir.1998) (analyzing K.S.A. 8-1522 which requires that a vehicle “be driven as nearly as practicable entirely within a single lane”). . 189 F.3d 1194, 1198 (10th Cir.1999). . Id. . 72 F.3d 1444 (10th Cir.1995). . 1 Fed. Appx. 847, 849, 2001 WL 15533 (10th Cir.2001). . 71 F.3d 783, 785 (10th Cir.1995) (en banc), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). . 392 U.S. at 20, 88 S.Ct. 1868. . United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). . United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998) (citing United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997)). . Patten, 183 F.3d at 1193 (citation omitted); United States v. Anderson, 114 F.3d" }, { "docid": "22952685", "title": "", "text": "has standing to challenge his traffic stop and subsequent detention. A traffic stop is an investigative detention analogous to a Terry stop. United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). Its reasonableness is evaluated in two respects: first, whether the officer’s action was justified at its inception, and, second, whether the action was reasonably related in scope to the circumstances that first justified the interference. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968). In the context of a traffic stop, this court has consistently held that: An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) (citations omitted). Further questioning is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial traffic stop if he has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring. Soto, 988 F.2d at 1554. Second, further questioning is permissible if the initial detention has become a consensual encounter. United States v. DeWitt, 946 F.2d 1497, 1502 (10th Cir.1991), cert. denied sub nom. Rison v. United States, — U.S. -, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992). The deputy’s uneontroverted testimony establishes that his detention of Mr. Gonzalez-Lerma had not become a consensual encounter. This Circuit follows the bright-line rule that an encounter initiated by a traffic stop may not be deemed consensual unless the driver’s documents have been returned to him. United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993). In this case, the deputy retained Mr. Gonzalez-Lerma’s license, identification, and title to the vehicle during the entire time at issue. Therefore, the Defendant was not free to leave and any questions asked were not part of a consensual encounter. See" }, { "docid": "7426680", "title": "", "text": "of the stop.’ ” United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Its scope must be carefully tailored to its underlying justification. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997). Upon issuing a citation or warning and determining the validity of the driver’s license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997). A longer detention for additional questioning is permissible if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or the initial detention changes to a consensual encounter. United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998). The Tenth Circuit has held in several cases that an officer conducting a routine traffic stop may inquire about “identity and travel plans,” United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989), and may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). In United States v. Holt, 264 F.3d 1215, 1230 (10th Cir.2001) (referred to by the Tenth Circuit as Holt II), the Tenth Circuit does state that an officer conducting a routine traffic stop may not ask questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity. As the Tenth Circuit has clarified, however, Holt II does not mean that officers cannot ask about travel plans, because such questions typically fall within the scope of a traffic stop: Holt II stands for the proposition that a “traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in" }, { "docid": "8912031", "title": "", "text": "the lawful scope of the detention. As this court has often stated, an officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See Hunnicutt, 135 F.3d at 1349. Normally, once the officer has completed these acts, and the driver “has produced a valid license and proof that he is entitled to operate the car, [the driver] must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.” United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994); see also United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir.1997); United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). However, further questioning is permissible under two circumstances. First, if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, the officer may detain the driver for questioning unrelated to the purpose of the initial traffic stop. Second, if the traffic stop has become a consensual encounter, the officer may continue to question the driver. Hunnicutt, 135 F.3d at 1349; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997). Here, Mr. Caro objects to his continued detention following Trooper Avery’s admitted inspection of the VIN plate located on the dashboard of the Honda. He contends that once Trooper Avery had compared the dashboard VIN to the VIN on the car’s registration, and had determined that they matched, Trooper Avery’s suspicions should have been “sufficiently dispelled such that further detention on the basis that the vehicle [might] be stolen was no longer valid.” Aplt’s Br. at 15. Mr. Caro argues that there was no basis for Trooper Avery to expect that a VIN located inside the car would give him any additional cause to think the car was stolen. He therefore asks us to suppress as unlawful all evidence obtained after Trooper Avery examined the dashboard VIN. In Mr. Caro’s view, but for Trooper Avery’s attempted inspection of a VIN inside the vehicle, the trooper would not have noticed any air fresheners. As" }, { "docid": "23492729", "title": "", "text": "14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). The investigative detention usually must “last no longer than is necessary to effectuate the purpose of the stop,” and “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter. See Gonzalez-Lerma, 14 F.3d at 1483. The officer had not returned Mr. Hunnicutt’s license at the time he asked about guns and drugs, so further questioning unrelated to the initial stop must have been supported by an objectively reasonable suspicion of illegal activity. See id.; United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993) (holding that encounter cannot become consensual while officer retains driver’s documents). A variety of factors may contribute to the formation of an objectively reasonable suspicion of illegal activity. Among those factors that have justified further questioning are having no proof of ownership of the vehicle, having no proof of authority to operate the vehicle, and inconsistent statements about destination. See United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995); Gonzalez-Lerma, 14 F.3d at 1483-84; United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). Also among those are driving with a suspended license, see Jones, 44 F.3d at 872, and reluctance to stop, see id.; Villar-Chaparro, 115 F.3d at 802; United States v. Walraven, 892 F.2d 972, 975 (10th Cir.1989). In particular, the inability to offer proof of ownership or authorization to operate the vehicle has figured prominently in" }, { "docid": "15384547", "title": "", "text": "subsequent traffic stop was valid. Accordingly, we find our decision in Gregory inapposite here and hold reasonable the initial traffic stop of Mr. Cervine. D. Reasonable Suspicion of Illegal Activity as the Basis for the Canine Search “Generally, an investigative detention must ‘last no longer than is neces sary to effectuate the purpose of the stop.’ ” United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Under ordinary circumstances, this limits the officer to a request for the driver’s license and registration, a computer check on the car and driver, an inquiry about the driver’s travel plans, and the issuance of a citation. See, e.g., United States v. Williams, 271 F.3d 1262, 1267 (10th Cir.2001). Generally, “[i]f the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.” Soto, 988 F.2d at 1554 (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990)). The officer, however, may extend this detention for reasons unrelated to the traffic stop under two circumstances: (1) if the officer has “an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring”; or (2) “if the initial detention has become a consensual encounter.” Gonzalez-Lerma, 14 F.3d at 1483 (citations omitted). The district court found that Mr. Cervine did not validly consent to the search of his vehicle and the related detention because the troopers did not return his driver’s license to him prior to obtaining consent. See Cervine, 169 F.Supp.2d at 1212 (citing United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994)). The United States does not contest this determination on appeal. Therefore, the troopers conducted a proper detention only if they had “a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotations omitted). In making this determination, we must examine the totality of the circumstances, meaning that reasonable suspicion may" }, { "docid": "23006650", "title": "", "text": "or that he was not at the time wearing a seat belt. The initial stop was therefore valid. We now turn to the validity of the detention following that initial stop. ' II. Validity of Detention Following Initial Stop: As the Supreme Court has stated, an investigative detention must “last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); see also United States v. Lee, 73 F.3d 1034, 1038-39 (10th Cir.1996). In this case, Mr. McRae’s vehicle was initially stopped because of equipment violations. We have previously stated the parameters of permissible activity during a routine traffic stop: ‘“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.’ ” United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988), overruled in part on other grounds by, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995) (en banc)), cert. denied, — U.S.-, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). Detention beyond that time period is only justified if the officer “has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring ... [or] the initial detention has become a consensual encounter.” Id. at 1483 (citations omitted). The government does not argue, nor could it, that the detention here evolved into a consensual encounter. The government also does not argue, nor could it, that the detention only lasted as long as is necessary to issue the citation and warning. It clearly lasted longer; indeed, Officer Colyar retained Mr. McRae’s license and rental papers after he finished issuing the citation and warning, thus denying Mr. McRae his ability to go on his way. We must therefore determine whether Officer" }, { "docid": "1642804", "title": "", "text": "Terry, 392 U.S. at 20, 88 S.Ct. 1868. “Generally, an investigative detention must ‘last no longer than is necessary to effectuate the purpose of the stop.’ ” United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). It must be temporary, and its scope must be carefully tailored to its underlying justification. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997). Upon issuing a citation or warning and determining the validity of the driver’s license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997). A longer detention for additional questioning is permissible under two circumstances: (1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring; or (2) the initial detention changes to a consensual encounter. United States v. Hunnieutt, 135 F.3d 1345, 1349 (10th Cir.1998). A. Consensual Encounter If an encounter between a police officer and a motorist is consensual, the Fourth Amendment ban on unreasonable searches and seizures does not come into play. See United States v. Walker, 933 F.2d 812, 816-17 (10th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). However, retention of a motorist’s driver’s license and/or other pertinent documents by the officer during any questioning precludes a conclusion of consent until the documents are returned. See id. at 817. The Tenth Circuit has consistently held “that an encounter initiated by a traffic stop may not be deemed consensual unless the driver’s documents have been returned to him.” United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994); accord United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.1995). Trooper Lambert testified that he had no recall of when he" }, { "docid": "23492728", "title": "", "text": "F.2d at 1524. Id. at 1370 (brackets added; footnote deleted). Since the issuance of Tapia, we have consistently held that once an officer has briefly stopped a motor vehicle operator for the purpose of issuing a traffic violation (i.e., a ticket), the officer’s continuing detention of the vehicle’s occupants is authorized under the Fourth Amendment only if the officer can point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Griffin, 109 F.3d at 708 (citing Tapia, 912 F.2d at 1370); accord United States v. Holloman, 113 F.3d 192, 196 (11th Cir.1997) (per curiam) (noting that a police stop cannot otherwise last “any longer than necessary to process the traffic violation”). Our sister circuits are of the same view. In United States v. Hunnicutt, 135 F.3d 1345 (10th Cir.1998), for example, the Tenth Circuit, consistent with Tapia, found: An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). The investigative detention usually must “last no longer than is necessary to effectuate the purpose of the stop,” and “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter. See Gonzalez-Lerma, 14 F.3d at 1483. The officer had not returned Mr. Hunnicutt’s license at the time he asked about guns and drugs, so further questioning unrelated to the initial stop must" }, { "docid": "1642803", "title": "", "text": "or currency in the vehicle or motorcycle he was hauling at the time of the stop. That Trooper Lambert did not actually observe any criminal activity is irrelevant as “the facts are measured against an objective reasonable man standard, not the subjective impressions of the particular officer.” United States v. Mallides, 473 F.2d 859, 861 (9th Cir.1973). Under these circumstances, the court finds that Trooper Lambert and Agent Ryan had a “particularized and objective basis” for making the investigatory stop of Maio’s vehicle. B. Traffic stop The parties raise multiple and interesting issues regarding whether Trooper Lambert would have been justified in stopping defendant solely on the basis of a traffic stop in the absence of reasonable suspicion, but in light of the court’s findings above, it is unnecessary to reach such issues. II. Scope of the Stop Defendant next asserts that even if the initial stop of defendant’s vehicle was legitimate, the detention was not “reasonably related in scope to the circumstances which justified the interference in the first place,” as is required under Terry, 392 U.S. at 20, 88 S.Ct. 1868. “Generally, an investigative detention must ‘last no longer than is necessary to effectuate the purpose of the stop.’ ” United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). It must be temporary, and its scope must be carefully tailored to its underlying justification. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997). Upon issuing a citation or warning and determining the validity of the driver’s license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997). A longer detention for additional questioning is permissible under two circumstances: (1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring;" }, { "docid": "7426681", "title": "", "text": "a routine traffic stop may inquire about “identity and travel plans,” United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989), and may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). In United States v. Holt, 264 F.3d 1215, 1230 (10th Cir.2001) (referred to by the Tenth Circuit as Holt II), the Tenth Circuit does state that an officer conducting a routine traffic stop may not ask questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity. As the Tenth Circuit has clarified, however, Holt II does not mean that officers cannot ask about travel plans, because such questions typically fall within the scope of a traffic stop: Holt II stands for the proposition that a “traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in which it is carried out.” Holt II, 264 F.3d at 1230. Mr. Williams does not argue that the questioning in this case increased the duration of the stop, but claims that questions related to his travel plans were beyond the scope of the stop and thus unreasonable even after Holt II. We are not persuaded, however, that in this case the questioning was outside the scope of the stop. When directly confronted with the issue, we have repeatedly held (as have other circuits) that questions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop, (citations omitted). Though such questions do typically fall within the scope of a traffic stop, citizens’ legitimate privacy interests are protected in that they are not legally obligated to answer such questions, nor can an officer compel an answer to these routine questions. See $4.04,905.00, 182 F.3d at 647 n. 2 (citing Terry[ v. Ohio], 392 U.S. [1] at 34, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] (White, J., concurring)). United States v. Williams, 271" }, { "docid": "7426679", "title": "", "text": "be unnecessary to resolve these issues, in view of the other issues raised herein.” (Dk.14, p. 7, n. 1.) Defendant makes no other mention of this issue. The Supreme Court in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), recognized “that the Constitution [Equal Protection Clause] prohibits selective enforcement of the law based considerations such as race.” 517 U.S. at 813, 116 S.Ct. 1769. Defendant points to no evidence indicating that Sergeant Rule’s decision to stop the vehicle for following too closely was based on racial considerations, rather than a traffic violation. Because no evidence supports defendant’s suggestion that he was a target of racial profiling, this claim must fail. See United States v. Saucedo, 226 F.3d 782, 790 (6th Cir.2000), cert. denied, 531 U.S. 1102, 121 S.Ct. 838, 148 L.Ed.2d 718 (2001). SCOPE OF DETENTION Defendant next asserts that both the length and scope of his detention exceeded the bounds of the law. “Generally, an investigative detention must ‘last no longer than is necessary to effectuate the purpose of the stop.’ ” United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Its scope must be carefully tailored to its underlying justification. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997). Upon issuing a citation or warning and determining the validity of the driver’s license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997). A longer detention for additional questioning is permissible if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or the initial detention changes to a consensual encounter. United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998). The Tenth Circuit has held in several cases that an officer conducting" }, { "docid": "23582080", "title": "", "text": "to the accused must be construed in favor of the accused — on its head. Accordingly, I dissent. “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc). Once an officer discovers that a traffic violation has not occurred, however, the law requires the officer to allow the driver to proceed without further delay. United States v. McStoain, 29 F.3d 558, 561-62 (10th Cir.1994). “Further delay is justified only if the officer has reasonable suspicion of [additional] illegal activity or if the encounter has become consensual.” United States v. Holt, 264 F.3d 1215, 1221 (10th Cir.2001) (en banc). In McSwain, the officer stopped defendant’s vehicle solely to verify the validity of a temporary registration sticker which “appeared to be covered with reflective tape.” McSwain, 29 F.Bd at 560 (emphasis added). Upon approaching the vehicle on foot, the officer observed the sticker was not covered with reflective tape and appeared valid. We concluded the purpose of the stop was satisfied at that point, and “further detention of the vehicle to question [defendant] about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop’s underlying justification.” Id. at 561. McSwain is binding precedent and controls the disposition of this case: The government nevertheless contends that Tenth Circuit precedent entitles Trooper Avery to engage in ... minimally intrusive conduct. Though we have held in several cases that an officer conducting a routine traffic stop may inquire about identity and travel plans, and may request a driver’s license and vehicle registration, run a computer check, and issue a citation, these cases ... are inapposite. They all involve situations in which the officer, at the time he or she asks questions or requests the driver’s license and registration, still has some objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring. Such cases" }, { "docid": "22925204", "title": "", "text": "1497, 1501 (10th Cir.1991) (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)), cert. denied, - U.S. -, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992); see also United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (\"The scope of the detention must be carefully tailored to its underlying justification.\"). The first prong of this inquiry is not at issue here because Mr. McSwain concedes the propriety of the initial stop. He argues, however, that the initially valid stop evolved into an unreasonable detention. We agree. Trooper Avery stopped Mr. McSwain for the sole purpose of ensuring the validity of the vehicle’s temporary registration sticker. Once Trooper Avery approached the vehicle on foot and observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied. Trooper Avery’s further detention of the vehicle to question Mr. McSwain about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop’s underlying justification. The government nevertheless contends that Tenth Circuit precedent entitles Trooper Avery to engage in such \"minimally intrusive\" conduct. Though we have held in several cases that an officer conducting a routine traffic stop may inquire about \"identity and travel plans,\" United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989), and may \"request a driver's license and vehicle registration, run a computer check, and issue a citation,\" United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988); see also United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993), these cases-cited by the government-are inapposite. They all involve situations in which the officer, at the time he or she asks questions or requests the driver's license and registration, still has some \"objectively reasonable articulable suspicion\" that a traffic violation \"has occurred or is occurring.\" Soto, 988 F.2d at 1554 (speeding); see also United States v. Trimble, 986 F.2d 394 (10th Cir.1993) (expired license plate), cert. denied, - U.S." }, { "docid": "1344688", "title": "", "text": "trooper's car may have caused the driver to stray onto the shoulder). . Gregory, 79 F.3d at 978. . 133 F.3d 933, 1998 WL 8227 (10th Cir.1998) (analyzing K.S.A. 8-1522 which requires that a vehicle “be driven as nearly as practicable entirely within a single lane”). . 189 F.3d 1194, 1198 (10th Cir.1999). . Id. . 72 F.3d 1444 (10th Cir.1995). . 1 Fed. Appx. 847, 849, 2001 WL 15533 (10th Cir.2001). . 71 F.3d 783, 785 (10th Cir.1995) (en banc), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). . 392 U.S. at 20, 88 S.Ct. 1868. . United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). . United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir.1997), cert. denied, 523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998) (citing United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997)). . Patten, 183 F.3d at 1193 (citation omitted); United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997) (citations omitted). . United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998) (citations omitted). . See United States v. Davis, 94 F.3d 1465, 1468 (10th Cir.1996); Patten, 183 F.3d at 1194 (\"A consensual encounter is simply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official.\") (quotation omitted). . A driver must be permitted to proceed after a routine traffic stop if a license and registration check reveal no reason to detain the driver, unless the officer has a reasonable articulable suspicion of other crimes or the driver voluntarily consents to further questioning. See United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996); United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999). . Royer, 460 U.S. at 497, 103 S.Ct. 1319. . 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). . Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). . United States v. Hernandez, 944 F.Supp. 847, 851 (D.Kan.1996) (citing United States v." }, { "docid": "8912030", "title": "", "text": "United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). However, the ultimate determination of reasonableness under the Fourth Amendment is a question of law which we review de novo. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). A routine traffic stop is analogous to an investigative detention and is analyzed under the principles stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). To determine the reasonableness of an investigative detention, we make a dual inquiry. First, we ask “ ‘whether the officer’s action was justified at its inception,’ ” and second, “ ‘whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’ ” Hunnicutt, 135 F.3d at 1348 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). Mr. Caro has not challenged Trooper Avery’s initial stop of the Honda for a window tint violation. We therefore proceed to Mr. Caro’s contention that Trooper Avery exceeded the lawful scope of the detention. As this court has often stated, an officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. See Hunnicutt, 135 F.3d at 1349. Normally, once the officer has completed these acts, and the driver “has produced a valid license and proof that he is entitled to operate the car, [the driver] must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.” United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994); see also United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir.1997); United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). However, further questioning is permissible under two circumstances. First, if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, the officer may detain the driver for questioning unrelated to the purpose of the initial traffic stop. Second, if the traffic stop has become a consensual encounter, the" }, { "docid": "1408486", "title": "", "text": "terrain mountainous and the weather condition was windy”) (citations omitted). Alternatively, at a minimum, Sergeant Kummer’s observations were “sufficient to create a reasonable suspicion that [Zabalza] might be sleepy or impaired, and could present a risk of harm to himself and others.” Ozbirn, 189 F.3d at 1199 (citing cases). Based on the above, we conclude that Sergeant Kummer’s initial stop of Zabalza was reasonable under the Fourth Amendment. See Ozbirn, 189 F.3d at 1198-99. ii. The investigative detention and subsequent search of the trunk “During a routine traffic stop, the detaining officer may request a driver’s license and vehicle registration, run a computer check on the car and driver, and issue a citation.” Soto, 988 F.2d at 1554 (citations omitted). The detaining officer may also question the vehicle’s occupants regarding their identities, travel plans, and ownership of the vehicle. United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989). Once an officer has completed a traffic stop, “‘[i]f the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.’ ” Soto, 988 F.2d at 1554 (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991)). However, [f]urther questioning is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial traffic stop if he has an objectively reasonable and articu-lable suspicion that illegal activity has occurred or is occurring. Second, further questioning is permissible if the initial detention has become a consensual encounter. Gonzalez-Lerma, 14 F.3d at 1483. In this case, the district court found credible Sergeant Rummer’s testimony that when he first began talking to Zabalza he detected a “moderate to strong odor” of marijuana coming from the vehicle. “Determinations of witness credibility [are] review[ed] for clear error.” United States v. McRae, 81 F.3d 1528, 1533 (10th Cir.1996). While Zabalza speculates in his brief that Sergeant Rummer might not have actually detected the odor of raw marijuana emanating from the vehicle at" } ]

[ { "docid": "22235142", "title": "", "text": "Once the “inquiry notice” of possible omissions provided by the above facts had triggered the duty to exercise reasonable diligence, the statutory period did not “await appellant’s leisurely discovery of the full details of the alleged scheme.” Klein v. Bower, 421 F.2d 338, 343 (2d Cir. 1970). See also Goldstandt v. Bear, Stearns & Co., 522 F.2d 1265, 1269 (7th Cir. 1975); Morgan v. Koch, supra. In determining whether an investor has made reasonable inquiries a court must consider, inter alia, the nature of the misleading statements alleged, the opportu nity to discover the misleading nature of the statements, and the subsequent actions of the parties. Cf. Hupp v. Gray, supra (Rule 10b-5 case); Morgan v. Koch, supra 419 F.2d at 997 (Rule 10b-5 case). Although the question of whether reasonable diligence has been exercised is factually based, we conclude that the actual determination is a sufficiently mixed question of law and fact to permit an appellate court to resolve the issue at least where the action below was tried to the court. In Dale v. Rosenfeld, 229 F.2d 855 (2d Cir. 1956), a case tried to the court, Judge Swan wrote that: The defendants argue that the issue of “reasonable diligence” is one of fact and we must accept Judge Ryan’s finding because it is not clearly erroneous. But we do not agree that it was a finding of fact; it set a standard of conduct pro hac vice, and the standard so set was erroneous; hence we may reverse it. Id. at 858. Even assuming the question of reasonable diligence is ordinarily to be decided by the trier of fact, where no conflicting inferences can be drawn from the testimony an appeals court may make its own determination on reasonable diligence. Newman v. Prior, 518 F.2d 97, 100-01 (4th Cir. 1975) As the record makes clear, Avien’s serious financial difficulties, in direct conflict with what plaintiffs complain they were led to believe, were unquestionably apparent by the end of 1969 and may have been obvious by March of 1969. The financial data available to the purchasers provided them" } ]

[ { "docid": "11761083", "title": "", "text": "the fraud or core allegations concerning Defendants’ alleged misrepresentation of the Valence battery’s nature, performance or safety characteristics, and therefore the article could not have placed the market on notice of fraud at Valence. As to the battery’s nature, Plaintiffs assert that the article did not mention, much less ques-? tion, one of the central bases for Plaintiffs’ suit, namely, whether Valence fraudulently misrepresented that its revolutionary new battery used a solid electrolyte instead of the conventional liquid electrolyte solution. Further, Plaintiffs assert that the article did not address the following additional core allegations concerning the battery’s performance: that the Valence battery (1) operated four times longer’on a single charge than a standard nickel cadmium (“NiCad”) battery of comparable weight, (2) had a total amount of available energy (energy density) of 205 Watt hours (“Wh”)/kg and 383 Wh/1, allowing it to deliver equal power from a battery one-third the volume and one-quarter the weight of today’s commonly used rechargeable batteries, and (3) was capable of over 150 deep discharge and 300 partial discharge cycles with no loss of capacity. In sum, Plaintiffs assert that while it is true that the Forbes article introduced some skepticism concerning Valence, it is not true the article put Plaintiffs or the market on notice of Defendants’ fraudulent characterizations of the battery’s electrolyte or its performance capabilities. However, it is not necessary for Plaintiffs to have full knowledge of the scope of the fraud, the existence of a particular claim or of each allegation in a claim, to be on inquiry notice. See e.g. Dodds v. Cigna Securities, Inc., 12 F.3d 346 (2nd Cir.1993); Kennedy v. Josephthal & Company, 814 F.2d 798, 802 (1st Cir.1987); Sterlin, supra. Rather, the proper inquiry is whether the Forbes article imparted sufficient facts to put a reasonable person on notice of potential fraud. “The information that triggers inquiry notice of the probability of an alleged securities fraud is any financial, legal, or other data available to the plaintiffs providing them with sufficient storm warnings to alert a reasonable person to the ■ probability that there were either misleading statements" }, { "docid": "16681916", "title": "", "text": "Circuit has declined to decide whether the... statute of limitations is triggered by actual discovery or inquiry notice.” In re Infonet Services Corp. Sec. Litig., 310 F.Supp.2d 1106, 1114 (C.D.Cal.2008); see also Berry, 175 F.3d at 704 (“[W]e need not decide whether actual discovery or inquiry notice applies.”). However, the Ninth Circuit has implied that inquiry notice is the appropriate .standard, and has expressed a preference for the Tenth Circuit’s formulation of that standard in Sterlin v. Biomune Sys., Inc., 154 F.3d 1191 (10th Cir.1998). See Berry, 175 F.3d at 704 (“If we were to adopt inquiry notice, we would agree with the Tenth Circuit’s formulation of that standard.”). “Sterlin directs courts to focus on two questions.” In re Infonet, 310 F.Supp.2d at 1114. First, when did the duty to investigate arise? See Berry, 175 F.3d at 704 (“First, did the... article raise sufficient suspicion of fraud to cause a reasonable investor to investigate the matter further?”). In other words, did any of the alleged false or misleading statements “put Plaintiff[s] on inquiry notice[?].” Sterlin, 154 F.3d at 1204. The focus here is whether the alleged false or misleading information amounted to “storm warnings” sufficient to trigger a duty to investigate on Plaintiffs’ part. Id See also Berry, 175 F.3d at 705 (“While an investor need not have full knowledge of fraud in order reasonably to be expected to investigate worrisome allegations concerning his investments, he will not be presumed to have done so unless the allegations are sufficient to ‘excite inquiry’ into the possibility of fraudulent conduct.”). “Second, when should a reasonably diligent investor have discovered the facts underlying the alleged fraudulent activity?” Id. This is a factual question. See Sterlin, 154 F.3d at 1205 (remanding to the district court to determine “whether, in the exercise of reasonable diligence, Plaintiff should have discovered the facts underlying the alleged fraudulent activity prior to October 12, 1994, one year before he filed suit.”); Berry, 175 F.3d at 706 (noting that it would have needed to “remand the case to the district court to determine when, if ever, a reasonably diligent investor" }, { "docid": "11761084", "title": "", "text": "no loss of capacity. In sum, Plaintiffs assert that while it is true that the Forbes article introduced some skepticism concerning Valence, it is not true the article put Plaintiffs or the market on notice of Defendants’ fraudulent characterizations of the battery’s electrolyte or its performance capabilities. However, it is not necessary for Plaintiffs to have full knowledge of the scope of the fraud, the existence of a particular claim or of each allegation in a claim, to be on inquiry notice. See e.g. Dodds v. Cigna Securities, Inc., 12 F.3d 346 (2nd Cir.1993); Kennedy v. Josephthal & Company, 814 F.2d 798, 802 (1st Cir.1987); Sterlin, supra. Rather, the proper inquiry is whether the Forbes article imparted sufficient facts to put a reasonable person on notice of potential fraud. “The information that triggers inquiry notice of the probability of an alleged securities fraud is any financial, legal, or other data available to the plaintiffs providing them with sufficient storm warnings to alert a reasonable person to the ■ probability that there were either misleading statements or significant omissions involved in the sale of securities.” Freedman v. Louisiana-Pacific Corp., 922 F.Supp. 377, 395 (D.Or.1996), quoting In re Integrated Resources Real Estate Sec. Litig., 815 F.Supp. 620, 639 (S.D.N.Y.1993) (internal quotations omitted). Notice requires only the disclosure of sufficient facts suggesting fraud to a reasonable investor. In re General Development Corp. Bond Litig., 800 F.Supp. 1128, 1142 (S.D.N.Y.1992). In this case, the undisputed evidence leads to the inescapable conclusion that the Forbes article triggered inquiry notice. The title of the article — “Story Stock” — -as well as its substance disclosed the general fraudulent scheme alleged by Plaintiffs in this case: that Defendants made misrepresentations about the Valence battery technology, driving up the stock price so that they could sell their shares at huge profits. The article opened by asking, “What levitates technology companies on Wall Street? Look at the case of Valence Technology and the curious merry-go-round of insiders, underwriters and journalists that keeps its stock spinning.” The article also provided notice of scienter, suggesting that “Insiders,” including one “accused of" }, { "docid": "21134690", "title": "", "text": "company when making it.” Law v. Medco Research, 113 F.3d 781, 785 (7th Cir.1997). In this case, the Forbes article essentially raised questions about the ultimate viability of Valence’s product, questions that even the article claimed were largely unanswerable. “Valence Technology’s lithium/polymer battery works beautifully in the lab,” the article noted, “But will it last? Can it be made cheaply? The world doesn’t know.” (emphasis added). The article’s conclusion that “investors ought to be a little choosier” before buying stock in Valence suggested simply that Valence’s technology remained unproven. While perhaps warranting caution before investing, such a suggestion certainly does not excite inquiry into the possibility of fraud. Indeed, the article’s most provocative claim — that a “curious merry-go-round of insiders, underwriters and journalists ... keeps [Valence’s] stock spinning” — challenged the enthusiasm and hype heaped on the product by the industry, not the honesty or good faith of Valence’s leaders. The negligible impact of the Forbes article bolsters our conclusion. First, the market exhibited little reaction to the article. Although Valence’s stock did dip from $15.00 to $12.50 about ten days after the article was published, two days later it rebounded to $15.00. Six months later, the stock reached $20.00. Two months after that, Valence raised over $50 million in a third public offering. Since the market did not react adversely to the Forbes article, a reasonable investor can hardly be expected to have suspeeted fraud. Compare Law, 113 F.3d at 784 (noting that the market did not respond to a series of skeptical articles, and concluding that the articles did not put shareholders on inquiry notice), with Sterlin, 154 F.3d at 1204 (noting that stock price “suffered a slide” after publication of skeptical Barron’s article putting investors on inquiry notice). Second, other press coverage of Valence remained largely positive. Indeed, in September, 1993, both Dow Jones Wire Service and The Wall Street Journal ran positive stories on Valence without even mentioning the Forbes article. Third, Lev Dawson responded publicly to the article immediately after it was published, refuting its allegations and claiming that Valence was everything it purported" }, { "docid": "23522117", "title": "", "text": "its SEC filings that a particular investor owned no stock when he \"actually owned more than 35% of Biomune's stock through a ‘byzantine array of entities,' \" evidenced a fraudulent representation to the SEC to obtain Biomune’s NASDAQ listing, which was sufficient information of fraud to put plaintiffs in a securities fraud class on inquiry notice. 154 F.3d at 1204. In comparing the Barron's article in Sterlin with a Forbes article concerning Valence Technology, Inc., the Ninth Circuit came to the opposite conclusion in considering whether the Forbes article provided inquiry notice in a securities fraud, class action by stock holders: \"While the article noted the checkered past of Carl Berg, one of Valence's principal investors, it did not state any facts from which it could be inferred that Valence was trying to mislead market regulators or defraud investors by hiding Berg's involvement in the company.\" Berry v. Valence Tech., Inc., 175 F.3d 699, 705 n. 8 (9th Cir.1999). That court held that “the Forbes article was insufficient to induce a reasonable investor to investigate the possibility of fraud” and \"that the district court erred in dismissing Plaintiffs' suit on statute of limitations grounds.\" Id. at 707.. . We recognize that other circuits have decided that § 1658(b) cannot be applied retroactively to revive securities fraud cases, when the claims were time-barred under the former statute of limitations. See, e.g., Foss v. Bear, Stearns & Co., 394 F.3d 540 (7th Cir.2005); In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir.2004). On the undeveloped record in this case, however, it is premature for us to make that legal determination. Under the inquiry-notice law of our circuit, we first must know the point in time when inquiry notice was applicable on the facts of this case. Once the district court has provided us with that factfinding, we can proceed to make the legal determination of the applicable statute of limitations. If the district judge determines that the plaintiff class was on inquiry notice prior to the effective date of the SOA statute of limitations, then this case is time-barred under" }, { "docid": "16681915", "title": "", "text": "question properly reserved for a motion for summary judgment or for the trier of fact. See Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., 940 F.Supp. 1101, 1126 (W.D.Mich.1996). Accordingly, the Court DENIES Defendants’ Motion to Dismiss for absence of loss causation. c. Whether the Claim Is Time Barred Defendants Carlo and IRC contend that Plaintiffs’ claim under section 10(b) and rule 10b-5 is time barred. (Mot. at 18-19.) The Court disagrees. “Private causes of action under section 10(b) of the 1934 Act and Rule 10b-5... have no statutorily-specified limitations period.” Berry v. Valence Technology, Inc., 175 F.3d 699, 703 (9th Cir.1999). “Thus, litigation instituted pursuant to § 10(b) and Rule 10b-5 must be commenced within one year after the discovery of the facts constituting the violation[.]” Id. (internal citations omitted); see also In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1411 (9th Cir.1996) (“Section 10(b) and Rule 10b-5 complaints must be filed within one year after the discovery of facts constituting the violation and within three years after such violation.”). “The Ninth Circuit has declined to decide whether the... statute of limitations is triggered by actual discovery or inquiry notice.” In re Infonet Services Corp. Sec. Litig., 310 F.Supp.2d 1106, 1114 (C.D.Cal.2008); see also Berry, 175 F.3d at 704 (“[W]e need not decide whether actual discovery or inquiry notice applies.”). However, the Ninth Circuit has implied that inquiry notice is the appropriate .standard, and has expressed a preference for the Tenth Circuit’s formulation of that standard in Sterlin v. Biomune Sys., Inc., 154 F.3d 1191 (10th Cir.1998). See Berry, 175 F.3d at 704 (“If we were to adopt inquiry notice, we would agree with the Tenth Circuit’s formulation of that standard.”). “Sterlin directs courts to focus on two questions.” In re Infonet, 310 F.Supp.2d at 1114. First, when did the duty to investigate arise? See Berry, 175 F.3d at 704 (“First, did the... article raise sufficient suspicion of fraud to cause a reasonable investor to investigate the matter further?”). In other words, did any of the alleged false or misleading statements “put Plaintiff[s] on inquiry notice[?].” Sterlin," }, { "docid": "21134699", "title": "", "text": "C.J.). Second, adopting inquiry notice risks causing considerable confusion among shareholders. Indeed, triggering the statute of limitations on inquiry notice may force shareholders to choose between \"risking what may be a frivolous suit filed timely on skimpy facts, and spending time investigating further on the chance that the short fuse may be running and later bar a legitimate action.” Charles Benjamin Nutley, Triggering One-Year Limitations on Section 10(b) and Rule 10b-5 Actions: Actual or Inquiry Discovery? 30 San Diego L. Rev. 917, 948 (1993). . It is undisputed that if actual discovery is the appropriate standard, the Forbes article did not trigger the statute of limitations. . ,In this respect, the Forbes article stands in stark contrast to the Barron’s article in Sterlin, 154 F.3d at 1202-04. The Barron's article implied that the company at issue, Biom-une, had lied in its SEC filings. According to the Barron's article, Biomune claimed in its SEC filings that Jack Solomon, an investor who had previously faced SEC charges, owned no Biomune stock. The article pointed out, however, that a \"byzantine array of entities in one way or another affiliated with Solomon own more than 35% of [Biomune’s] stock.” Id. at 1203. The article thus alleged facts sufficient for a reasonable investor to conclude that Biomun'e had attempted to hide Solomon’s interest in the company in order to survive SEC scrutiny. The Forbes article in this case contained no such allegations. While the article noted the checkered past of Carl Berg, one of Valence’s principal investors, it did not state any facts from which it could be inferred that Valence was trying to mislead market regulators or defraud investors by hiding Berg’s involvement in the company. . If we adopted inquiry notice and found that the Forbes article did raise sufficient suspicions to cause a reasonable investor to investigate further, we would then have to remand the case to the district court to determine when, if ever, a reasonably diligent investor should have discovered the facts underlying the alleged fraud. See Sterlin, 154 F.3d at 1205. . Plaintiffs cite United States v. O’Hagan, 521" }, { "docid": "21134689", "title": "", "text": "Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir.1988) (allegations must be substantial enough to “warrant inquiry”). A press article’s general skepticism about a company’s future prospects is not sufficient to excite inquiry into the specific possibility of fraud. Rather, in order for a press article to put shareholders on inquiry notice, there must be some reasonable nexus between the allegations made in the article and the nature of the action subsequently brought. See 15 U.S.C. § 78i(e) (statute of limitations is triggered with “discovery of the facts constituting the violation”) (emphasis added); Gray v. First Winthrop Corp., 82 F.3d 877, 881 (9th Cir.1996) (“The limitations period commences when the plaintiff ‘has actual or inquiry notice that a fraudulent misrepresentation has been made.’ ”) (quoting Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1412 (9th Cir.1987)) (emphasis added). In the context of section 10(b) actions, shareholders are on inquiry when they learn that a representation made by the company is “false for reasons likely to have been within the knowledge of the company when making it.” Law v. Medco Research, 113 F.3d 781, 785 (7th Cir.1997). In this case, the Forbes article essentially raised questions about the ultimate viability of Valence’s product, questions that even the article claimed were largely unanswerable. “Valence Technology’s lithium/polymer battery works beautifully in the lab,” the article noted, “But will it last? Can it be made cheaply? The world doesn’t know.” (emphasis added). The article’s conclusion that “investors ought to be a little choosier” before buying stock in Valence suggested simply that Valence’s technology remained unproven. While perhaps warranting caution before investing, such a suggestion certainly does not excite inquiry into the possibility of fraud. Indeed, the article’s most provocative claim — that a “curious merry-go-round of insiders, underwriters and journalists ... keeps [Valence’s] stock spinning” — challenged the enthusiasm and hype heaped on the product by the industry, not the honesty or good faith of Valence’s leaders. The negligible impact of the Forbes article bolsters our conclusion. First, the market exhibited little reaction to the article. Although Valence’s stock did dip" }, { "docid": "16681917", "title": "", "text": "154 F.3d at 1204. The focus here is whether the alleged false or misleading information amounted to “storm warnings” sufficient to trigger a duty to investigate on Plaintiffs’ part. Id See also Berry, 175 F.3d at 705 (“While an investor need not have full knowledge of fraud in order reasonably to be expected to investigate worrisome allegations concerning his investments, he will not be presumed to have done so unless the allegations are sufficient to ‘excite inquiry’ into the possibility of fraudulent conduct.”). “Second, when should a reasonably diligent investor have discovered the facts underlying the alleged fraudulent activity?” Id. This is a factual question. See Sterlin, 154 F.3d at 1205 (remanding to the district court to determine “whether, in the exercise of reasonable diligence, Plaintiff should have discovered the facts underlying the alleged fraudulent activity prior to October 12, 1994, one year before he filed suit.”); Berry, 175 F.3d at 706 (noting that it would have needed to “remand the case to the district court to determine when, if ever, a reasonably diligent investor should have discovered the facts underlying the alleged fraud”). “[T]he answer to the second question would determine when the statute of limitations began to run.” Berry, 175 F.3d at 704. Thus, inquiry notice “trig gers an investor’s duty to exercise reasonable diligence and... the one-year statute of limitations period begins to run once the investor, in the exercise of reasonable diligence, should have discovered the facts underlying the alleged fraud.” Sterlin, 154 F.3d at 1201. “A defendant raising the statute of limitations... has the burden of proving the action is time barred.” California Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1406 (9th Cir.1995). Defendants IRC and Carlo have failed to meet that burden. Their failure is conceptual. They assert “the large quantity of negative information concerning REMUNE in 1999 triggered an obligation of investigation well before July 10, 2000” — a year before this action was filed. (Mot. at 19.) This equates arousal of suspicion with commencement of the limitations period. The statute begins running, not on the date of inquiry notice, but on" }, { "docid": "23522093", "title": "", "text": "In contrast, our court concluded that an article in a nationally distributed magazine, Smart Money, was sufficient to put plaintiffs/investors in a class action on inquiry notice by alleging that a “strong buy” recommendation by a particular analyst in a securities-investment firm was made under a conflict of interest and artificially inflated the price of a specific corporate stock. La Grasta, 358 F.3d at 840, 848, 849. Critical to our conclusion was specific exposure in the article not only of the identities of the seeurities-investment firm and the particular, implicated analyst, but also the conflict of interest. On remand, the district judge must determine whether either of the nationally distributed articles in this case were explicit enough to have provided inquiry notice to the plaintiff class members. Dean Witter has not asserted that prospectuses, publicly filed SEC documents, company press releases, or account statements contained meaningful disclosures that would have provided notice to the class members of the alleged fraud sufficient for inquiry notice. “It is beyond dispute that the defendants have the burden of proof in establishing the elements of the affirmative defense of the statute of limitations.” Smith v. Duff & Phelps, Inc., 5 F.3d 488, 492 n. 9 (11th Cir.1993). The applicable SOA statute of limitations does not commence until Roberts and the class members “discovered, or, in the exercise of reasonable diligence, should have discovered, the alleged fraud,” and Dean Witter “bear[s] the burdens of production and persuasion on that question.” Id. Significantly, general skepticism expressed in a press article about corporate conduct is insufficient “to excite inquiry into the specific possibility of fraud.” Berry v. Valence Tech., Inc., 175 F.3d 699, 705 (9th Cir.1999). Instead, “for a press article to put shareholders on inquiry notice, there must be some reasonable nexus between the allegations made in the article and the nature of the action subsequently brought.” Id. (emphasis added). In addition to determination of what established inquiry notice and when that occurred, the district judge on remand must determine the point in time that Roberts, on behalf of the class members, had sufficient specific factual" }, { "docid": "21134691", "title": "", "text": "from $15.00 to $12.50 about ten days after the article was published, two days later it rebounded to $15.00. Six months later, the stock reached $20.00. Two months after that, Valence raised over $50 million in a third public offering. Since the market did not react adversely to the Forbes article, a reasonable investor can hardly be expected to have suspeeted fraud. Compare Law, 113 F.3d at 784 (noting that the market did not respond to a series of skeptical articles, and concluding that the articles did not put shareholders on inquiry notice), with Sterlin, 154 F.3d at 1204 (noting that stock price “suffered a slide” after publication of skeptical Barron’s article putting investors on inquiry notice). Second, other press coverage of Valence remained largely positive. Indeed, in September, 1993, both Dow Jones Wire Service and The Wall Street Journal ran positive stories on Valence without even mentioning the Forbes article. Third, Lev Dawson responded publicly to the article immediately after it was published, refuting its allegations and claiming that Valence was everything it purported to be. It is true that a “dear shareholder” letter alone is insufficient to dissipate “storm clouds” over a company once they have gathered. See Sterlin, 154 F.3d at 1204; Great Rivers Coop., 120 F.3d at 898. But given the lack of any notable adverse market reaction or negative press followup, it would have been reasonable for a shareholder to read Dawson’s letter and to conclude that nothing was amiss. We hold, therefore, that the Forbes article would not have led a reasonable investor to investigate the possibility of fraud. Accordingly, regardless of whether we adopt actual discovery or inquiry notice as the governing standard, we find that the statute of limitations had not run when Plaintiffs filed their suit. HL Over sixteen months before it granted Valence’s motion for summary judgment, the district court dismissed all claims against Dawson “to the extent that they are based on alleged misstatements after April 30, 1993.” The district court dismissed those claims for failure to state a claim upon which relief can be granted, see FED. R." }, { "docid": "21134695", "title": "", "text": "In fact, the Third Amended Complaint contains no allegations of how Dawson controlled or otherwise significantly influenced the alleged misstatements made by Valence after his resignation. Thus, the district court properly dismissed the claims against Dawson to the extent they are based on alleged misstatements made after his resignation. IV. Because the Forbes article was insufficient to induce a reasonable investor to investigate the possibility of fraud, we hold that the district court erred in dismissing Plaintiffs’ suit on statute of limitations grounds. In so holding, we do not decide whether actual discovery or inquiry notice triggers the statute of limitations for section 10(b) actions. We affirm the district court’s dismissal of the claims against Dawson that are based on alleged misstatements made after he resigned as CEO of Valence. Accordingly, the decisions of the district court are AFFIRMED in part and REVERSED in part, and the case is REMANDED to the district court for proceedings consistent with this opinion. Appellants are entitled to their costs against appellees except Dawson. Appellee Dawson is entitled to his costs against appellants. . Except when distinguishing among the individual defendants, we use “Valence” to refer to all defendants collectively. . Plaintiffs further allege that Dawson, Reed, and Berg violated section 20(a) of the 1934 Act, see 15 U.S.C. § 78t(a). That section provides for joint and several liability for persons controlling persons or entities liable elsewhere under the 1934 Act. . Section 9(e) provides, in pertinent part: \"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.” 15 U.S.C. § 78i(e). . An actual discovery standard does not require determining precisely when each plaintiff actually knew of facts sufficient to make out a claim of fraud. Courts can impute knowledge of public information without inquiring into when, or whether, individual shareholders actually knew of the information in question. See Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 610 (7th Cir.1995) (\"A reasonable investor is presumed to have" }, { "docid": "21134696", "title": "", "text": "his costs against appellants. . Except when distinguishing among the individual defendants, we use “Valence” to refer to all defendants collectively. . Plaintiffs further allege that Dawson, Reed, and Berg violated section 20(a) of the 1934 Act, see 15 U.S.C. § 78t(a). That section provides for joint and several liability for persons controlling persons or entities liable elsewhere under the 1934 Act. . Section 9(e) provides, in pertinent part: \"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.” 15 U.S.C. § 78i(e). . An actual discovery standard does not require determining precisely when each plaintiff actually knew of facts sufficient to make out a claim of fraud. Courts can impute knowledge of public information without inquiring into when, or whether, individual shareholders actually knew of the information in question. See Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 610 (7th Cir.1995) (\"A reasonable investor is presumed to have information available in the public domain, and therefore ... is imputed with constructive knowledge of this information.”). .Valence claims otherwise, citing In re Stac Elec. Sec. Litig., 89 F.3d 1399 (9th Cir.1996), cert. denied sub nom. Anderson v. Clow, 520 U.S. 1103, 117 S.Ct. 1105, 137 L.Ed.2d 308 (1997). Stac applied Lampf to a case involving section 10(b) claims and affirmed the dismissal of several defendants added to a suit over one year after it was first filed. Stac held that the statute of limitations began running with the original filing, because \"plaintiffs were clearly aware of or suspected fraud at the time they filed their first complaint.” 89 F.3d at 1411. In that case, therefore, the event triggering the statute of limitations was plaintiffs’ filing of their complaint alleging specific acts of fraud. That filing would have sufficed under either an inquiry notice or an actual discovery standard. Stac did not specifically address which of the two standards applied. In fact, the Stac panel withdrew its original opinion in order to delete a passage" }, { "docid": "21134688", "title": "", "text": "did the Forbes article raise sufficient suspicion of fraud to cause a reasonable investor to investigate the matter further? Second, when should a reasonably diligent investor have discovered the facts underlying the alleged fraudulent activity? If the answer to the first question were yes, the answer to the second question would determine when the statute of limitations began to run. In this case, we need not decide whether actual discovery or inquiry notice applies, because under either standard the Forbes article did not trigger the statute of limitations. First, we note that the Forbes article made no allegation of actual fraud on the part of Valence or its principals. While an investor need not have full knowledge of fraud in order reasonably to be expected to investigate worrisome allegations concerning his investments, he will not be presumed to have done so unless the allegations are sufficient to “excite inquiry” into the possibility of fraudulent conduct. Sterlin, 154 F.3d at 1203 (quoting Cook v. Avien, 573 F.2d 685, 697 n. 25 (1st Cir.1978)); see Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir.1988) (allegations must be substantial enough to “warrant inquiry”). A press article’s general skepticism about a company’s future prospects is not sufficient to excite inquiry into the specific possibility of fraud. Rather, in order for a press article to put shareholders on inquiry notice, there must be some reasonable nexus between the allegations made in the article and the nature of the action subsequently brought. See 15 U.S.C. § 78i(e) (statute of limitations is triggered with “discovery of the facts constituting the violation”) (emphasis added); Gray v. First Winthrop Corp., 82 F.3d 877, 881 (9th Cir.1996) (“The limitations period commences when the plaintiff ‘has actual or inquiry notice that a fraudulent misrepresentation has been made.’ ”) (quoting Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1412 (9th Cir.1987)) (emphasis added). In the context of section 10(b) actions, shareholders are on inquiry when they learn that a representation made by the company is “false for reasons likely to have been within the knowledge of the" }, { "docid": "23522116", "title": "", "text": "Witter contends that complaints and counterclaims filed in arbitration matters, which were not even on court dockets and thus publicly available, provided inquiry notice to Roberts and the class members. Moreover, on a motion to dismiss and \"to show that the [former] limitations period applies,” Dean Witter \"improperly relies upon evidence not referenced in the pleadings,” which more appropriately should be considered on a summaty-judgment motion. Id. Indeed, the district judge on remand may decide that he is unable to determine the date that we seek as to when Roberts had sufficient notice of Dean Witter’s conduct with respect to e-Net stock to file a complaint on behalf of the class members without full discovery. . Two other circuits have used a similar analysis to decide whether articles in magazines of national distribution provided sufficient inquiry notice. In Sterlin, the Tenth Circuit concluded that a Barron’s article that . \"questioned whether Biomune's purpose was to create a viable product, Immuno-C, or whether it was in business simply to 'sell shares,' \" plus Biomune's representation in its SEC filings that a particular investor owned no stock when he \"actually owned more than 35% of Biomune's stock through a ‘byzantine array of entities,' \" evidenced a fraudulent representation to the SEC to obtain Biomune’s NASDAQ listing, which was sufficient information of fraud to put plaintiffs in a securities fraud class on inquiry notice. 154 F.3d at 1204. In comparing the Barron's article in Sterlin with a Forbes article concerning Valence Technology, Inc., the Ninth Circuit came to the opposite conclusion in considering whether the Forbes article provided inquiry notice in a securities fraud, class action by stock holders: \"While the article noted the checkered past of Carl Berg, one of Valence's principal investors, it did not state any facts from which it could be inferred that Valence was trying to mislead market regulators or defraud investors by hiding Berg's involvement in the company.\" Berry v. Valence Tech., Inc., 175 F.3d 699, 705 n. 8 (9th Cir.1999). That court held that “the Forbes article was insufficient to induce a reasonable investor to investigate" }, { "docid": "21134698", "title": "", "text": "stating that inquiry notice applies to actions under section 10(b). See In re Stac Elec. Sec. Litig., 82 F.3d 1480, 1492 (9th Cir.), amended by 89 F.3d 1399 (9th Cir.1996). Thus, Stac did not hold that inquiry notice is the standard. See City Nominees Ltd. v. Macromedia, Inc., 1998 WL 267964, *1 (N.D.Cal. May 18, 1998) (noting that Stac \"implies that inquiry notice should be used,” but recognizing that \"[tjhere is no Ninth Circuit case on point.”). . Several circuits, most notably the seventh circuit in Tregenza, seem to justify inquiry notice on policy grounds. See Tregenza, 12 F.3d at 722. To the extent policy considerations are relevant here, however, it is far from clear that inquiry notice is the more desirable standard. First, Inquiry Notice Is Not Amenable To Bright Line Rules. What information raises sufficient \"red flags” to put shareholders on inquiry notice is, as the author of Tregenza has apparently recognized, not answerable as a per se matter. See Fujisawa Pharm. Co., Ltd. v. Kapoor, 115 F.3d 1332, 1334-37 (7th Cir.1997) (Posner, C.J.). Second, adopting inquiry notice risks causing considerable confusion among shareholders. Indeed, triggering the statute of limitations on inquiry notice may force shareholders to choose between \"risking what may be a frivolous suit filed timely on skimpy facts, and spending time investigating further on the chance that the short fuse may be running and later bar a legitimate action.” Charles Benjamin Nutley, Triggering One-Year Limitations on Section 10(b) and Rule 10b-5 Actions: Actual or Inquiry Discovery? 30 San Diego L. Rev. 917, 948 (1993). . It is undisputed that if actual discovery is the appropriate standard, the Forbes article did not trigger the statute of limitations. . ,In this respect, the Forbes article stands in stark contrast to the Barron’s article in Sterlin, 154 F.3d at 1202-04. The Barron's article implied that the company at issue, Biom-une, had lied in its SEC filings. According to the Barron's article, Biomune claimed in its SEC filings that Jack Solomon, an investor who had previously faced SEC charges, owned no Biomune stock. The article pointed out, however, that" }, { "docid": "13624843", "title": "", "text": "* must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.” Lampf, Pleva, Lipkind, et al. v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991). “The statute of limitations for claims brought under Rule 10b-5 is triggered ‘when the plaintiff has actual knowledge of the fraud or knowledge of facts sufficient to put a reasonable person on notice.’” In re Syntex Corp. Sec. Litig., 855 F.Supp. 1086, 1099 (N.D.Cal.1994) (quoting Davis v. Birr, Wilson & Co., Inc., 839 F.2d 1369, 1370 (9th Cir.1988)); see also Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1412 (9th Cir.1987) (“the statute of limitations is not triggered until the defrauded individual[s] ha[ve] actual or inquiry notice that a fraudulent misrepresentation has been made * * * [which is when] they discovered or should have discovered the facts constituting their claim.”); Whirlpool Financial Corp. v. GN Holdings, Inc., 67 F.3d 605, 609 (7th Cir.1995) (“Inquiry notice starts the running of the statute of limitations when the victim of the alleged fraud became aware of facts that would have led a reasonable person to investigate whether he might have a claim.” (internal quotations omitted)). “The determination of whether a plaintiff knew or should have known of a causé of action presents a question for the trier of fact,” Reeves v. Teuscher, 881 F.2d 1495, 1501 (9th Cir.1989) (citing Volk, 816 F.2d at 1417). “It may be decided as a matter of law only when uneontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered the fraudulent conduct.” Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir.1984), cert. denied, 469 U.S. 932, 105 S.Ct. 329, 83 L.Ed.2d 265 (1984). Therefore, Plaintiffs’ claims accrued from the moment that they had actual or inquiry notice of Defendants’ fraud. “The information that triggers inquiry notice of the probability of an alleged securities fraud is any financial, legal, or other data available to the plaintiffs providing them with sufficient storm warnings to alert a reasonable person to the probability" }, { "docid": "11761079", "title": "", "text": "rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. The Court reviews a Special master’s findings and conclusion de novo. See Federal Rule .of Civil Procedure 53(e)(2); Estate of Conners by Meredith v. O’Connor, 6 F.3d 656, 659 (9th Cir.1993). The Court must enter its own order based on such review. Id. IV. DISCUSSION There are no disputed material facts. Plaintiffs contend that summary judgment based upon the statute of limitations should be denied because the inquiry notice standard is inapplicable as a matter of law, and because the Forbes article did not place Plaintiffs on either inquiry or actual notice of Defendants’ alleged fraud. A. Inquiry Notice v. Actual Notice Litigation under Rule 10b-5 “must be commenced within one year after the discovery of the facts constituting the violation.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 2782-83, 115 L.Ed.2d 321 (1991). The parties dispute whether the Lampf decision requires “actual” or “inquiry” notice to trigger the statute of limitations with respect to securities fraud actions. The Ninth Circuit has not yet squarely addressed this issue.' However, there is at least one Ninth Circuit opinion which suggests that inquiry notice continues to apply after the Lampf decision. See In re Stac Electronics Securities Litigation, 89 F.3d 1399 (9th Cir.1996). Furthermore, it appears that every appellate court which has addressed the issue since the Supreme Court’s ruling in Lampf has held that inquiry notice applies. In the absence of controlling Ninth Circuit authority, this Court adopts the inquiry notice standard for the reasons offered in Tregenza v. Great American Communications Company, 12 F.3d 717, 721-22 (7th Cir.1993), cert. denied 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 465 (1994). Applying the inquiry notice standard, the statute of limitations for a 10b-5 claim begins to run when the plaintiffs have actual knowledge of the fraud or knowledge of facts sufficient to put a reasonable person on notice of fraud. Davis v. Birr, Wilson & Co., 839 F.2d" }, { "docid": "21134687", "title": "", "text": "(5th Cir.1992). On a literal reading of Lampf, those decisions appear to be “contrary to the specific guidance issued by the Court.” Slavin v. Morgan Stanley & Co., 791 F.Supp. 327 (D.Mass.1992); see generally Lewis D. Lowenfels & Alan R. Bromberg, SEC Rule 10b-5 and Its New Statute of Limitations: The Circuits Defy the Supreme Court, 51 BUS. LAW. 309 (1996). If we were to adopt inquiry notice, we would agree with the Tenth Circuit’s formulation of that standard. In Sterlin, the Tenth Circuit surveyed case law from other circuits and found that most circuits “generally apply an inquiry notice standard coupled with some form of reasonable diligence requirement.” Id. at 1199-1200. In Sterlin’s formulation, “inquiry notice ... triggers an investor’s duty to exercise reasonable diligence and ... the one-year statute of limitations period begins to run once the investor, in the exercise of reasonable diligence, should have discovered the facts underlying the alleged fraud.” 154 F.3d at 1201. Were we to apply the Sterlin test to this case, we would face two questions. First, did the Forbes article raise sufficient suspicion of fraud to cause a reasonable investor to investigate the matter further? Second, when should a reasonably diligent investor have discovered the facts underlying the alleged fraudulent activity? If the answer to the first question were yes, the answer to the second question would determine when the statute of limitations began to run. In this case, we need not decide whether actual discovery or inquiry notice applies, because under either standard the Forbes article did not trigger the statute of limitations. First, we note that the Forbes article made no allegation of actual fraud on the part of Valence or its principals. While an investor need not have full knowledge of fraud in order reasonably to be expected to investigate worrisome allegations concerning his investments, he will not be presumed to have done so unless the allegations are sufficient to “excite inquiry” into the possibility of fraudulent conduct. Sterlin, 154 F.3d at 1203 (quoting Cook v. Avien, 573 F.2d 685, 697 n. 25 (1st Cir.1978)); see Beneficial Standard" }, { "docid": "23522094", "title": "", "text": "proof in establishing the elements of the affirmative defense of the statute of limitations.” Smith v. Duff & Phelps, Inc., 5 F.3d 488, 492 n. 9 (11th Cir.1993). The applicable SOA statute of limitations does not commence until Roberts and the class members “discovered, or, in the exercise of reasonable diligence, should have discovered, the alleged fraud,” and Dean Witter “bear[s] the burdens of production and persuasion on that question.” Id. Significantly, general skepticism expressed in a press article about corporate conduct is insufficient “to excite inquiry into the specific possibility of fraud.” Berry v. Valence Tech., Inc., 175 F.3d 699, 705 (9th Cir.1999). Instead, “for a press article to put shareholders on inquiry notice, there must be some reasonable nexus between the allegations made in the article and the nature of the action subsequently brought.” Id. (emphasis added). In addition to determination of what established inquiry notice and when that occurred, the district judge on remand must determine the point in time that Roberts, on behalf of the class members, had sufficient specific factual information of Dean Witter’s violation of the securities laws to file the class-action complaint. If that did not occur until the October 1, 2002, SEC Order, then this securities fraud, class action was timely filed on November 15, 2002, under the applicable SOA statute of limitations, when the plaintiff class learned that their investment losses were the result of Dean Witter’s fraudulent conduct rather than a downturn in the stock market. D. Directions Review of the facts -stated in the class-action complaint, the statutory language, and applicable securities fraud cases indicates that this case could have been filed timely under the SOA statute of limitations. From the factual allegations of the complaint and the attached SEC Order, a reasonable inference is that the plaintiff class did not know the facts of the fraudulent conduct by Dean Witter that caused their losses relative to their e-Net stock sufficient to file their complaint until the SEC Order issued. If the district judge on remand determines that this is true, then the class-action complaint was filed timely within" } ]

[ { "docid": "23117211", "title": "", "text": "rely on gossamer abstractions to invalidate a law which obviously meets an entirely secular need. I would reverse. Justice O’Connor, with whom Justice Rehnquist joins as to Parts II and III, dissenting. Today the Court affirms the holding of the Court of Appeals that public school teachers can offer remedial instruction to disadvantaged students who attend religious schools “only if such instruction . . . [is] afforded at a neutral site off the premises of the religious school.” 739 F. 2d 48, 64 (CA2 1984). This holding rests on the theory, enunciated in Part V of the Court’s opinion in Meek v. Pittenger, 421 U. S. 349, 367-373 (1975), that public school teachers who set foot on parochial school premises are likely to bring religion into their classes, and that the supervision necessary to prevent religious teaching would unduly entangle church and state. Even if this theory were valid in the abstract, it cannot validly be applied to New York City’s 19-year-old Title I program. The Court greatly exaggerates the degree of supervision necessary to prevent public school teachers from inculcating religion, and thereby demonstrates the flaws of a test that condemns benign cooperation between church and state. I would uphold Congress’ efforts to afford remedial instruction to disadvantaged schoolchildren in both public and parochial schools. I As in Wallace v. Jaffree, 472 U. S. 38 (1985), and Thornton v. Caldor, Inc., 472 U. S. 703 (1985), the Court in this litigation adheres to the three-part Establishment Clause test enunciated in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). To survive the Lemon test, a statute must have both a secular legislative purpose and a principal or primary effect that neither advances nor inhibits religion. Under Lemon and its progeny, direct state aid to parochial schools that has the purpose or effect of furthering the religious mission of the schools is unconstitutional. I agree with that principle. According to the Court, however, the New York City Title I program is defective not because of any improper purpose or effect, but rather because it fails the third part of the" } ]

[ { "docid": "7560340", "title": "", "text": "cross, acknowledging that it is “an unmistakable symbol of Christianity as practiced in this country today.” Harris, 927 F.2d at 1403. In fact, the crucifix is arguably the quintessential Christian symbol because it depicts Christ’s death on the cross and recalls thoughts of his passion and death. St. Charles, 794 F.2d at 273. Therefore, the crucifix must pass the Lemon test to remain standing in the Park. That being said, Lemon instructs that in order to pass constitutional muster, the publicly displayed religious symbol must 1) have a secular purpose; 2) neither advance nor inhibit religion in its principal or primary effect; and 3) not foster an excessive entanglement with religion. Lemon, 403 U.S. at 612, 91 S.Ct. at 2111. Justice O’Connor suggested a clarification of the first and second prongs of the Lemon test in a concurring opinion in another Establishment Clause case. She proposed that courts consider whether the disputed governmental act was meant to endorse, or has the effect of endorsing, religion. Lynch v. Donnelly, 465 U.S. 668, 687-94, 104 S.Ct. 1355, 1366-70, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). This suggestion was adopted in Allegheny, and the Court reiterated that the prohibition of religious endorsement “ ‘preclude^] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.’ ” Allegheny, 492 U.S. at 593, 109 S.Ct. at 3101 (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 2497, 86 L.Ed.2d 29 (O’Connor, J., concurring in the judgment)). The concept of “endorsement” is fluid, and varies from case to case. Id. As Justice Scalia noted in Lamb’s Chapel, and as other Supreme Court decisions illustrate, the Court has avoided addressing the Lemon question, see Lee v. Weisman, - U.S. at -, 112 S.Ct. at 2655 (relying on “controlling precedents” in prayer in school and religious exercise cases when finding Establishment Clause violation), and has not always applied the Lemon test to Establishment Clause challenges. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (relying on historical acceptance of salaried legislative chaplains" }, { "docid": "7560341", "title": "", "text": "1366-70, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). This suggestion was adopted in Allegheny, and the Court reiterated that the prohibition of religious endorsement “ ‘preclude^] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.’ ” Allegheny, 492 U.S. at 593, 109 S.Ct. at 3101 (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 2497, 86 L.Ed.2d 29 (O’Connor, J., concurring in the judgment)). The concept of “endorsement” is fluid, and varies from case to case. Id. As Justice Scalia noted in Lamb’s Chapel, and as other Supreme Court decisions illustrate, the Court has avoided addressing the Lemon question, see Lee v. Weisman, - U.S. at -, 112 S.Ct. at 2655 (relying on “controlling precedents” in prayer in school and religious exercise cases when finding Establishment Clause violation), and has not always applied the Lemon test to Establishment Clause challenges. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (relying on historical acceptance of salaried legislative chaplains and of prayer to open legislative sessions to find no Establishment Clause violation). In Marsh, the majority noted that the Eighth Circuit applied the Lemon test in its decision below, but when reversing, the Court neither applied nor mentioned the test. Id. In Lee, the majority intentionally avoided applying Lemon. Lee, - U.S. at -, 112 S.Ct. at 2655 (“We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured.”). Both of those cases ignored another Supreme Court case, Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), that determined a government tax exemption for religious organizations had to be struck down unless the government could justify it by proving it had a compelling interest in the offering the exemption. The Larson majority also applied the effect and the entanglement prongs of the Lemon test. Id. 456 U.S. at 251-55, 102 S.Ct. at 1686-89. Most recently, the Supreme Court decided the Establishment Clause challenge in Zobrest v. Catalina Foothills School Dist.," }, { "docid": "12432850", "title": "", "text": "devotion. Does “under God” make the Pledge a prayer, whose recitation violates the establishment clause of the first amendment? The district court trudged through the three elements identified by the Court in Lemon, concluding that the Pledge passes every test. Of course Lemon was not devised to identify prayer smuggled into civic exercises, and its status as a general-purpose tool for administering the establishment clause is in doubt. Rumblings of discontent are frequent. The Court heard Lee v. Weisman in large part to reconsider Lemon, and Lee concluded without renewing Lemon’s lease. The majority opinion reserved decision on the future of Lemon. — U.S. at -, 112 S.Ct. at 2655. Three members of the majority signed an opinion employing Lemon, — U.S. at -, 112 S.Ct. at 2663-64 (Black-mun, J., joined by Stevens & O’Connor, JJ.), but one member of this group has expressed doubts. Aguilar v. Felton, 473 U.S. 402, 426-30, 105 S.Ct. 3232, 3245-47, 87 L.Ed.2d 290 (1985) (O’Connor, J., dissenting). The author of the majority opinion in Lee has disparaged Lemon, see Allegheny, 492 U.S. at 655-56, 109 S.Ct. at 3134 (opinion of Kennedy, J.). The fifth member of the majority in Lee wrote a concurring opinion that did not rely on or endorse Lemon. — U.S. at -, 112 S.Ct. at 2667-78 (Souter, J.). And four Justices proposed to jettison Lemon forthwith. — U.S. at -, 112 S.Ct. at 2685 (Scalia, J., dissenting, joined by Rehnquist, C.J., and White & Thomas, JJ.). So we are not disposed to resolve this case by parsing Lemon. Our approach is more direct. Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods? You can’t understand a phrase such as “Congress shall make no law respecting an establishment of religion” by syllogistic reasoning. Words take their meaning from social as well as textual contexts, which is why “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506," }, { "docid": "22965934", "title": "", "text": "112 S.Ct. at 2655, and Board of Education of Kiryas Joel v. Grumet, — U.S.-, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994). In Lee, Justice Scalia, joined by Chief Justice Rehnquist, Justice White and Justice Thomas, dissenting, unequivocally stated: Our religion-clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called lemon test, [citation omitted], which has received well-earned criticism from many members of this Court. [Citations omitted] The Court today demonstrates the irrelevance of Lemon by essentially ignoring it ... and the interment of that case may be the one happy by-product of the Court's otherwise lamentable decision. 505 U.S. at 643, 112 S.Ct. at 2685. Again in Kiryas Joel, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, stated: [T]he Court’s snub of lemon today ... is particularly noteworthy because all three courts below (who are not free to ignore Supreme Court precedent at will) relied on it, and the parties (also bound by our case law) dedicated over 80 pages of briefing to the application and continued vitality of the Lemon test. In addition to the other sound reasons for abandoning Lemon, [citations omitted], it seems quite inefficient for this Court, which in reaching its decisions relies heavily on the briefing of the parties and, to a lesser extent, the opinions of lower courts, to mislead lower courts and parties about the relevance of the Lemon test. -U.S. at-, 114 S.Ct. at 2515. See also - U.S. at -, 114 S.Ct. at 2500 (O’Connor J., concurring in part and concurring in the judgment) (\"[T|he slide away from lemon's unitary approach is well under way.”); Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding state action against establishment clause challenge without reference to Lemon ). Even where the Lemon test has been applied, members of the Court have openly recommended abandoning it. See Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655, 109 S.Ct. 3086, 3134, 106 L.Ed.2d 472" }, { "docid": "8771209", "title": "", "text": "that more elaborate or repetitive Christian references were unusual, and were contained in only a minority of the prayers. . Plaintiffs urge that the \"exception” to Lemon carved out by Marsh is for ''nonsectarian legislative prayer,” and that outside this limited context, the Supreme Court's decision in Lemon governs the constitutionality of the practice. Insofar as Plaintiffs' position is that a legislative prayer practice that offends the constitutional limits articulated in Marsh must be evaluated, and struck down, under principles akin to those embodied in Lemon, the Court agrees. But the Court declines to endorse a reading of Marsh that reduces the majority’s holding to a mere \"sectarian” litmus test, ignoring the reasoning and nuances of the Court's decision in favor of a bright line rule. . Notably, this description of the prayers as \"nonsectarian,” offered by Chaplain Palmer, is the sole reference made to the \"sectarian” character vel non of the subject prayers in the Marsh majority's opinion. . The Allegheny opinion was notably fractured: BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JL, joined, an opinion with respect to Parts I and II, in which STEVENS and O'CONNOR, JL, joined, an opinion with respect to Part III— B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O'CONNOR, J., joined, and an opinion with respect to Part VI. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JL, joined,.... BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JL, joined,.... STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ„ joined,.... KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JL, joined.... Allegheny, 109 S.Ct. at 3092-93. The only portions of the opinion relevant for the Court's purposes here," }, { "docid": "12432849", "title": "", "text": "schools, many tailored to religious or cultural minorities, making the majoritarian curriculum of the public schools less oppressive. We agree with Judge Boggs that “school boards may set curricula bounded only by the Establishment Clause” even though pupils may find the books and classroom discourse offensive or immoral. Mozert, 827 F.2d at 1080 (concurring opinion). By remaining neutral on religious issues, the state satisfies its duties under the free exercise clause. Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). All that remains is Barnette itself, and so long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag “and to the Republic for which it stands”. IV All of this supposes that the Pledge is a secular rather than sectarian vow. Everything would be different if it were a prayer or other sign of religious devotion. Does “under God” make the Pledge a prayer, whose recitation violates the establishment clause of the first amendment? The district court trudged through the three elements identified by the Court in Lemon, concluding that the Pledge passes every test. Of course Lemon was not devised to identify prayer smuggled into civic exercises, and its status as a general-purpose tool for administering the establishment clause is in doubt. Rumblings of discontent are frequent. The Court heard Lee v. Weisman in large part to reconsider Lemon, and Lee concluded without renewing Lemon’s lease. The majority opinion reserved decision on the future of Lemon. — U.S. at -, 112 S.Ct. at 2655. Three members of the majority signed an opinion employing Lemon, — U.S. at -, 112 S.Ct. at 2663-64 (Black-mun, J., joined by Stevens & O’Connor, JJ.), but one member of this group has expressed doubts. Aguilar v. Felton, 473 U.S. 402, 426-30, 105 S.Ct. 3232, 3245-47, 87 L.Ed.2d 290 (1985) (O’Connor, J., dissenting). The author of the majority opinion in Lee has disparaged Lemon, see" }, { "docid": "11406839", "title": "", "text": "of the establishment clause, with some members of the court in favor of abandoning the Lemon test, see, e.g., County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), and although the law in this area appears to be in a state of flux, see Weisman v. Lee, 908 F.2d 1090 (1st Cir.1990), cert. granted, — U.S. —, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991) (Court agrees to consider whether benediction invoking deity at public school high school graduation violates establishment clause), a majority of the court still adheres to Lemon. See Board of Educ. of Westside Comm. Schools v. Mergens, — U.S. —, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion, O’Connor, J., with Rehnquist, J., White, J., and Blackmun, J.); id. at —, 110 S.Ct. at 2378 (Marshall, J., joined by Brennan, J., concurring); id. at —, 110 S.Ct. at 2383 (Stevens, J., dissenting); County of Allegheny v. American Civil Liberties Union, 492 U.S. at 591-93, 109 S.Ct. at 3100. See also Bishop v. Aronov, 926 F.2d at 1077 (applying Lemon test to resolve establishment clause claim). . Even where it has a secular purpose and does not result in excessive entanglement, official conduct that in any way endorses religion is invalid because it “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 595, 109 S.Ct. 3086, 3102, 106 L.Ed.2d 472 (1989) (Blackmun, J., joined by Stevens, J.), quoting Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 1367, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring). . Because children are usually more impressionable than adults, the Court has exercised special vigilance in monitoring compliance with the establishment clause in public school settings. See Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). . In Mergens, several high school students challenged a board of education’s refusal to allow them" }, { "docid": "17003223", "title": "", "text": "the finding that the city has allowed four facilities to provide child care services in R-2 districts without special use permits. We also accept the finding that there is no functional difference between day care centers and nursery schools for purposes of Des Plaines’ zoning ordinance. That said, we turn to the merits. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof_” U.S. Const. amend. I. The Establishment Clause prohibits the government from promoting or affiliating with any religious doctrine or organization, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 590, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472 (1989), and “is a specific prohibition on forms of state intervention in religious affairs.... ” Lee v. Weisman, — U.S. —, —, 112 S.Ct. 2649, 2657, 120 L.Ed.2d 467 (1992). As did the district court, we analyze the plaintiffs argument against the zoning ordinance using the trilogy of tests developed by the Supreme Court in Lemon. Though rumors of Lemon’s demise have abounded in the past several years, see e.g., Lee v. Weisman, — U.S. at —, 112 S.Ct. at 2687 (Scalia, J., dissenting); Allegheny, 492 U.S. at 655-56, 109 S.Ct. at 3134 (Kennedy, J., concurring in the judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latterday Saints v. Amos, 483 U.S. 327, 346-49, 107 S.Ct. 2862, 2874-75, 97 L.Ed.2d 273 (1987) (O’Connor, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 636-40, 107 S.Ct. 2573, 2605-07, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400, 105 S.Ct. 3216, 3248, 87 L.Ed.2d 267 (1985) (White, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 108-114, 105 S.Ct. 2479, 2516-19, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting), the Court recently admonished that they are exaggerated. See Lamb’s Chapel v. Center Moriches Union Free School Dist., — U.S. —, —, 113 S.Ct. 2141, 2148 n. 7, 124 L.Ed.2d 352 (1993). Lemon, then, remains the operative standard. See Board of Educ. of the Westside" }, { "docid": "18872513", "title": "", "text": "with interior decorators than with the judiciary.” American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting). B Although the Court has “repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area,” Lynch, 465 U.S. at 679, 104 S.Ct. at 1362, it has generally applied the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to determine whether a challenged practice or statute comports with the Establishment Clause. Moreover, despite criticisms by current members of the Court, see Lee v. Weisman, — U.S. at -, 112 S.Ct. at 2685 (Scalia, J., dissenting) (cataloging such criticisms), the Supreme Court expressly declined to reconsider the Lemon test in Lee, id. at -, 112 S.Ct. at 2655 (opinion of the Court). We therefore see no justification for the dissent’s articulation of a new Establishment Clause test. Even were a new test warranted, the dissent’s proposed sliding scale test has what we see as a major flaw: It requires the court to judge the “intensity” of the religious message. This is problematic in a several significant ways. First, an inquiry into the intensity of a religious symbol essentially asks how “central” that symbol is to the faith it represents. For example, is a menorah more intense than a cross? The Supreme Court has disapproved this sort of inquiry in religion cases. See Employment Division v. Smith, 494 U.S. 872, 886-87, 110 S.Ct. 1695, 1604, 108 L.Ed.2d 876 (1990) (constructing free exercise test to avoid judicial inquiry into the “centrality” of a practice to a person’s faith); see also Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148, 104 L.Ed.2d 766 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith-”); United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) (“It is not within the judicial function and judicial competence, however, to determine whether appellee or the Government has the" }, { "docid": "17003224", "title": "", "text": "abounded in the past several years, see e.g., Lee v. Weisman, — U.S. at —, 112 S.Ct. at 2687 (Scalia, J., dissenting); Allegheny, 492 U.S. at 655-56, 109 S.Ct. at 3134 (Kennedy, J., concurring in the judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latterday Saints v. Amos, 483 U.S. 327, 346-49, 107 S.Ct. 2862, 2874-75, 97 L.Ed.2d 273 (1987) (O’Connor, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 636-40, 107 S.Ct. 2573, 2605-07, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400, 105 S.Ct. 3216, 3248, 87 L.Ed.2d 267 (1985) (White, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 108-114, 105 S.Ct. 2479, 2516-19, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting), the Court recently admonished that they are exaggerated. See Lamb’s Chapel v. Center Moriches Union Free School Dist., — U.S. —, —, 113 S.Ct. 2141, 2148 n. 7, 124 L.Ed.2d 352 (1993). Lemon, then, remains the operative standard. See Board of Educ. of the Westside Community Schools v. Mergens, 496 U.S. 226, 234-35, 110 S.Ct. 2356, 2364, 110 L.Ed.2d 191 (1990). According to the Lemon test, the Des Plaines ordinance must (1) have a secular purpose; (2) neither advance nor inhibit religion in its principal or primary effect; and (3) not foster an excessive entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. The Supreme Court has refined the analysis under the first two prongs of Lemon, focusing on “whether the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion, a concern that has long had a place in [the Court’s] Establishment Clause jurisprudence.” Allegheny, 492 U.S. at 592, 109 S.Ct. at 3100. See also Gonzales v. North Township of Lake County, Indiana, 4 F.3d 1412, 1418 (7th Cir.1993). Thus, “the prohibition against governmental endorsement of religion ‘precluded] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.’ ” Allegheny, 492 U.S. at 593, 109 S.Ct. at 3101 (quoting Wallace v. Jaffree, 472 U.S." }, { "docid": "22965935", "title": "", "text": "parties (also bound by our case law) dedicated over 80 pages of briefing to the application and continued vitality of the Lemon test. In addition to the other sound reasons for abandoning Lemon, [citations omitted], it seems quite inefficient for this Court, which in reaching its decisions relies heavily on the briefing of the parties and, to a lesser extent, the opinions of lower courts, to mislead lower courts and parties about the relevance of the Lemon test. -U.S. at-, 114 S.Ct. at 2515. See also - U.S. at -, 114 S.Ct. at 2500 (O’Connor J., concurring in part and concurring in the judgment) (\"[T|he slide away from lemon's unitary approach is well under way.”); Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding state action against establishment clause challenge without reference to Lemon ). Even where the Lemon test has been applied, members of the Court have openly recommended abandoning it. See Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655, 109 S.Ct. 3086, 3134, 106 L.Ed.2d 472 (1989) (Kennedy, J., joined by Rehnquist, C.J., White, J. and Scalia, J., concurring in the judgment in part and dissenting in part) (\"I ... do not wish to be seen as advocating, let alone adopting, [the Lemon test] as our primary guide in this difficult area.”); Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 346, 107 S.Ct. 2862, 2873, 97 L.Ed.2d 273 (1987) (O’Connor, J., concurring in the judgment); Edwards v. Aguillard, 482 U.S. 578, 636-40, 107 S.Ct. 2573, 2605-07, 96 L.Ed.2d 510 (1987) (Scalia, J., joined by Rehnquist, C.J., dissenting) (especially.recommending abandoning the \"purpose-prong” because it \"exacerbates the tension between the Free Exercise and Establishment Clauses, [and] has no basis in the language or history of the Amendment” Ld. at 640, 107 S.Ct. at 2607); Grand Rapids School District v. Ball, 473 U.S. 373, 400, 105 S.Ct. 3216, 3231, 87 L.Ed.2d 267 (1985) (White, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 68-69, 105 S.Ct. 2479, 2495-97, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring in the judgment) (\"the standards announced in Lemon should" }, { "docid": "12432851", "title": "", "text": "Allegheny, 492 U.S. at 655-56, 109 S.Ct. at 3134 (opinion of Kennedy, J.). The fifth member of the majority in Lee wrote a concurring opinion that did not rely on or endorse Lemon. — U.S. at -, 112 S.Ct. at 2667-78 (Souter, J.). And four Justices proposed to jettison Lemon forthwith. — U.S. at -, 112 S.Ct. at 2685 (Scalia, J., dissenting, joined by Rehnquist, C.J., and White & Thomas, JJ.). So we are not disposed to resolve this case by parsing Lemon. Our approach is more direct. Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods? You can’t understand a phrase such as “Congress shall make no law respecting an establishment of religion” by syllogistic reasoning. Words take their meaning from social as well as textual contexts, which is why “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.). Unless we are to treat the founders of the United States as unable to understand their handiwork (or, worse, hypocrites about it), we must ask whether those present at the creation deemed ceremonial invocations of God as “establishment.” They did not. See Allegheny, 492 U.S. at 671-73, 109 S.Ct. at 3142-43 (opinion of Kennedy, J.). James Madison, the author of the first amendment, issued presidential proclamations of religious fasting and thanksgiv ing. Thomas Jefferson, who refused on separationist grounds to issue thanksgiving proclamations, nonetheless signed treaties sending ministers to the Indians. The tradition of thanksgiving proclamations began with President Washington, who presided over the constitutional convention. From the outset, witnesses in our courts have taken oaths on the Bible, and sessions of court have opened with the cry “God save the United States and this honorable Court.” Jefferson’s Declaration of Independence contains multiple references to God (for example: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator" }, { "docid": "18872512", "title": "", "text": "1409, 1413, 25 L.Ed.2d 697 (1970)). In the context of religious holiday displays, the Court’s Establishment Clause jurisprudence has been particularly factbound. No clear general principles emerge from the two most recent cases considering the constitutionality of such displays. In Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Court found no Establishment Clause violation in the City of Pawtucket’s ownership and annual display of holiday decorations including, among other things, a Santa Claus, a Christmas tree, and a Nativity scene. The display was located in a privately-owned park in the heart of the City’s shopping district. In Allegheny County, a deeply divided Court held unconstitutional the display of a privately-owned creche on the “Grand Staircase” of the County courthouse, but permitted a second privately-sponsored display consisting of a menorah, a Christmas tree, and a sign saluting liberty outside a government office building a block from the courthouse. Together, Lynch and Allegheny County call for a detailed contextual inquiry that has been aptly described as “requiring scrutiny more commonly associated with interior decorators than with the judiciary.” American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting). B Although the Court has “repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area,” Lynch, 465 U.S. at 679, 104 S.Ct. at 1362, it has generally applied the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to determine whether a challenged practice or statute comports with the Establishment Clause. Moreover, despite criticisms by current members of the Court, see Lee v. Weisman, — U.S. at -, 112 S.Ct. at 2685 (Scalia, J., dissenting) (cataloging such criticisms), the Supreme Court expressly declined to reconsider the Lemon test in Lee, id. at -, 112 S.Ct. at 2655 (opinion of the Court). We therefore see no justification for the dissent’s articulation of a new Establishment Clause test. Even were a new test warranted, the dissent’s proposed sliding scale test has what we see as a major" }, { "docid": "11406838", "title": "", "text": "— U.S. at —, 110 S.Ct. at 3119; Perry Education Ass'n v. Perry Local Educators’ Ass’n, 460 U.S. at 45, 103 S.Ct. at 954-55, the Board members who testified at a hearing on plaintiffs’ motion acknowledged that its denial of the Church’s application was based on the service’s content. See Boos v. Barry, 485 U.S. 312, 320-21, 108 S.Ct. 1157, 1163-64, 99 L.Ed.2d 333 (1988) (justification which focuses on the reactions to speech of listeners and others is content-based). . The Board acknowledges that plaintiffs should prevail if the court finds that permitting the service planned by the Church would not violate the establishment clause. Accordingly, the court need not address whether the Board’s desire to avoid the appearance of endorsing religion could constitute a compelling state interest even if allowing the service in the school auditorium did not run afoul of the establishment clause. See Widmar v. Vincent, 454 U.S. at 280, 102 S.Ct. at 279-80. .Despite the fact that the Supreme Court has in recent cases been sharply divided on the proper interpretation of the establishment clause, with some members of the court in favor of abandoning the Lemon test, see, e.g., County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), and although the law in this area appears to be in a state of flux, see Weisman v. Lee, 908 F.2d 1090 (1st Cir.1990), cert. granted, — U.S. —, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991) (Court agrees to consider whether benediction invoking deity at public school high school graduation violates establishment clause), a majority of the court still adheres to Lemon. See Board of Educ. of Westside Comm. Schools v. Mergens, — U.S. —, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion, O’Connor, J., with Rehnquist, J., White, J., and Blackmun, J.); id. at —, 110 S.Ct. at 2378 (Marshall, J., joined by Brennan, J., concurring); id. at —, 110 S.Ct. at 2383 (Stevens, J., dissenting); County of Allegheny v. American Civil Liberties Union, 492 U.S. at 591-93, 109 S.Ct. at 3100. See also Bishop v." }, { "docid": "12018364", "title": "", "text": "will allow a chorus of government prayers to resound from every “deliberative body” of every locality whose duty it is to address the secular affairs of its constituents. If the Establishment Clause prohibits a religious monument from occupying the lobby of a County building, it defies logic to conclude that the Clause nevertheless sanctions state-sponsored prayer at public meetings upstairs. The majority cites to the plurality opinion, Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 2865, 162 L.Ed.2d 607 (2005), in which the Supreme Court deviated somewhat from Lemon in allowing a monument with the Ten Commandments to remain on the Texas state capitol grounds. But see Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (applying Lemon in allowing the display of a nativity scene). Although Chief Justice Rehnquist, joined by Justice Scalia, Justice Kennedy, and Justice Thomas, wrote that the Lemon test is “not useful in dealing with the sort of passive monument,” he still relied, in part, on the purpose prong of the Lemon test. In delivering his opinion, Justice Rehnquist affirmed that there was a “valid secular purpose” to the monument: “recognizing and commending the [monument’s sponsors] for their efforts to reduce juvenile delinquency.” Van Orden, 545 U.S. at 686, 682, 125 S.Ct. 2854, 2856, 2858, 162 L.Ed.2d 607. In addition, concurring in the judgment, Justice Bryer suggested that an evaluation under Lemon might lead to the same result. 545 U.S. at 700, 125 S.Ct. 2854, 2869, 162 L.Ed.2d 607. Thus, the Supreme Court’s ad hoc approach to the display of religious symbols “has come to ‘requirfe] scrutiny more commonly associated with interior decorators than with the judiciary.’ ” Lee, 505 U.S. at 636, 112 S.Ct. 2649, 2681, 120 L.Ed.2d 467 (Scalia, J. dissenting). This approach might do for the quiescent display of religious monuments and holiday decorations, however; a more rigorous and consistently applied evaluation is required, and has been applied, when the state assumes the active exercise of public prayer. III. I would draw the line at state-sponsored prayer at invocations before the United States Congress and the" }, { "docid": "22965933", "title": "", "text": "the forum non-public. See id. at 1117-18 and citations therein. The subject matter and category of speaker restrictions of Policy IKFD are arguably compatible with the concept of a limited public forum. See also Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 454 (M.D.Fla.1994); but cf. Lundberg v. West Monona Community School District, 731 F.Supp. 331, 337 (N.D.Iowa 1989). . I note its subsequent history: reh'g en banc, denied, 983 F.2d 234 (5th Cir.1992), and mot. granted, cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), and that.the court of appeals reaffirmed Jones in Ingebretsen v. Jackson Public Sch. Dist., 88 F.3d 274, 281 (5th Cir.1996), 64 U.S.L.W. 2443 (Jan. 10, 1996). . There has been much commentary critical of the Lemon test, but it suffices here to call attention to the divisions which Lemon has engendered in the Court itself. First, most recently the Court has begun to address the establishment clause issue with little or no resort to the Lemon test. See Lee v. Weisman, 505 U.S. at 586, 112 S.Ct. at 2655, and Board of Education of Kiryas Joel v. Grumet, — U.S.-, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994). In Lee, Justice Scalia, joined by Chief Justice Rehnquist, Justice White and Justice Thomas, dissenting, unequivocally stated: Our religion-clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called lemon test, [citation omitted], which has received well-earned criticism from many members of this Court. [Citations omitted] The Court today demonstrates the irrelevance of Lemon by essentially ignoring it ... and the interment of that case may be the one happy by-product of the Court's otherwise lamentable decision. 505 U.S. at 643, 112 S.Ct. at 2685. Again in Kiryas Joel, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, stated: [T]he Court’s snub of lemon today ... is particularly noteworthy because all three courts below (who are not free to ignore Supreme Court precedent at will) relied on it, and the" }, { "docid": "22965901", "title": "", "text": "Kiryas Joel v. Grumet, -U.S.-, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); Lee v. Weisman, 505 U.S. at 587, 112 S.Ct. at 2655; Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). See also Kiryas Joel, - U.S. at-, 114 S.Ct. at 2500 (O’Connor, J., concurring) (\"|T]he slide away from Lemon's unitary approach is well under way.”); Wallace, 472 U.S. at 68-69, 105 S.Ct. at 2496 (O'Connor, J., concurring in the judgment) (\"the standard announced in Lemon should be reexamined and refined”); Lynch, 465 U.S. at 688, 104 S.Ct. at 1367 (O’Connor, J., concuixing) (\"Our prior cases have used the three-part test articulated in Lemon as a guide to detecting these two forms of unconstitutional government action. It has never been entirely clear, however, how the three parts of the test relate to the principles enshrined in the Establishment Clause.”) (citation omitted); Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983) (”[0]ur cases have also emphasized that [the Lemon test] provides ‘no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges.”). . The record establishes that, here, at least one student did not vote because he did not believe he should be required to vote on this issue. App. at 89. . See Lynch, 465 U.S. at 690-91, 104 S.Ct. at 1368-69 (O'Connor, J., concurring). . See Allegheny, 492 U.S. at 631-32, 109 S.Ct. at 3121-22 (O’Connor, J., concurring in part and concurring in the judgment). . In pointing out one of the more obvious maladies of the policy before us, we do not mean to suggest that the policy can be saved by restruc-hiring the vote and requiring an absolute majority- MANSMANN, Circuit Judge, dissenting, joined by Judges NYGAARD, ALITO and ROTH. I must dissent because I believe the issue squarely before us, whether student-initiated, -directed and -composed prayer at high school graduation violates the First Amendment, requires that we examine the application of both the Establishment Clause and the free exercise/free speech right, balancing the graduates’ free exercise and speech rights against any compelling state interest" }, { "docid": "7445679", "title": "", "text": "God? Some of each? Some frustrated Justices have been led to discuss the absurdity of the Lemon test. See Lee v. Weisman, 505 U.S. 577, 644, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Scalia, J., dissenting) (stating that Lemon “has received well-earned criticism from many Members of this Court,” and collecting opinions criticizing Lemon). See also, Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398-99, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring in judgment) (collecting opinions criticizing Lemon). But in the end there has to be a Lemon test, or some other test now that the Court has departed from the text and original understanding of the Establishment Clause. The Establishment Clause reads that “Congress shall make no law respecting an establishment of religion.” “The Framers intended the Establishment Clause to prohibit the designation of any church as a ‘national’ one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others.” Wallace v. Jaffree, 472 U.S. 38, 113, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting). The Establishment Clause further sought “to protect state establishments of religion from federal interference.” Lee, 505 U.S. at 641, 112 S.Ct. 2649 (Scalia, J., dissenting) (emphasis added). See also, American Jewish Congress, 827 F.2d at 129 (Easterbrook, J., dissenting) (“The Establishment Clause was supposed to prevent the federal government from taxing for the support of a church or requiring religious observance.”). What the Establishment Clause did not intend to do was to build a wall of separation, or to mandate that the government treat religion and irreligión equally. See, e.g., Wallace, 472 U.S. 38, 98, 105 S.Ct. 2479, 86 L.Ed.2d 29 (Rehnquist, J., dissenting) (Madison “did not see it as requiring neutrality on the part of government between religion and irreligión.”). See generally, Wallace, 472 U.S. at 91-114, 105 S.Ct. 2479 (Rehnquist, J., dissenting); Lee, 505 U.S. at 631-46, 112 S.Ct. 2649 (Scalia, J., dissenting); American Jewish Congress, 827 F.2d at 128-40 (Easter-brook, J., dissenting); Leonard W. Levy, The Establishment Clause: Religion and" }, { "docid": "1142894", "title": "", "text": "most recent decisions have either ignored Lemon or openly dispar aged it. See Board of Education of Kiryas Joel Village School Dist. v. Grumet, — U.S. -, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); Zobrest v. Catalina Foothills School Dist., — U.S.-, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993); Lee, — U.S. at-, 112 S.Ct. 2649. And over the years, at least five currently sitting Justices have called for the elimination of Lemon as a general purpose test for all Establishment Clause cases. See Lamb’s Chapel v. Center Moriches School Dist., — U.S. -, -, 113 S.Ct. 2141, 2150, 124 L.Ed.2d 352 (1993) (listing cases) (Scalia, J., dissenting). Lee itself expressly sidestepped the issue, stating that the constitutionality of the religious activity in that case could be judged without reference to Lemon. — U.S. at -, 112 S.Ct. at 2655. Most likely, Lemon’s unitary test will some day be replaced by a series of category-specific rules. See Grumet, — U.S. at -, 114 S.Ct. at 2499-2500 (O’Con-nor, J., concurring). Presumably, under such an approach, future cases involving official public occasions with religious components will be governed by Lee v. Weisman. Indeed, because “Lemon was not devised to identify prayer smuggled into civic exercises,” this Court is similarly “not disposed to resolve this ease by parsing Lemon.” Sherman v. Community Consol. School Dist. 21, 980 F.2d 437, 445 (7th Cir.1992). We emphasize, however, that a district court’s role is not that of prophet, but rather that of disciple. We are bound by existing precedents, even when they are ambiguous and contradictory and difficult to divine. Since Lee v. Weisman, several Seventh Circuit decisions have addressed the question of Lemon’s viability and have concluded that it remains the governing test in Establishment Clause cases absent any express overruling by the Supreme Court. See Carter v. Peters, 26 F.3d 697 (7th Cir.1994); Fleischfresser v. Directors of School Dist. 200, 15 F.3d 680, 686 (7th Cir.1994); Sherman v. Community Consol. School Dist. 21 of Wheeling Tp., 8 F.3d 1160, 1164 n. 9 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2109, 128 L.Ed.2d" }, { "docid": "1142893", "title": "", "text": "these plaintiffs, however, as explained above, there is no such risk here. In sum, the “symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as free and voluntary choice.” Grand Rapids School Dist. v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985). Since these concerns are not present at a university commencement involving thousands of graduates, multiple ceremonies, advanced degrees and well-defined personal and religious identities, we find that Plaintiffs are unlikely to prevail on the merits under Lee v. Weisman. B. The Lemon Test — Its Application, If Any. For two decades prior to Lee, the Supreme Court applied the now much maligned Lemon test to Establishment Clause cases. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Reliance on Lemon for determination of Establishment Clause violations, however, has noticeably declined in the last decade. At least three of the Supreme Court’s most recent decisions have either ignored Lemon or openly dispar aged it. See Board of Education of Kiryas Joel Village School Dist. v. Grumet, — U.S. -, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); Zobrest v. Catalina Foothills School Dist., — U.S.-, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993); Lee, — U.S. at-, 112 S.Ct. 2649. And over the years, at least five currently sitting Justices have called for the elimination of Lemon as a general purpose test for all Establishment Clause cases. See Lamb’s Chapel v. Center Moriches School Dist., — U.S. -, -, 113 S.Ct. 2141, 2150, 124 L.Ed.2d 352 (1993) (listing cases) (Scalia, J., dissenting). Lee itself expressly sidestepped the issue, stating that the constitutionality of the religious activity in that case could be judged without reference to Lemon. — U.S. at -, 112 S.Ct. at 2655. Most likely, Lemon’s unitary test will some day be replaced by a series of category-specific rules. See Grumet, — U.S. at -, 114 S.Ct. at 2499-2500 (O’Con-nor, J., concurring). Presumably, under such an approach, future" } ]

[ { "docid": "22652007", "title": "", "text": "OPINION SCHROEDER, Chief Judge. This is a highly unusual case. The appellant, Ranjit Singh, a native and citizen of India, unlawfully entered the United States in July 1990. He has diligently pursued his efforts to obtain lawful permanent residence status on the basis of his marriage. He appeared for five deportation hearings between October 1995 and October 1997, which were all continued. Several other hearings were continued upon his request until his wife could obtain citizenship. Finally, after his wife had become a naturalized United States citizen, and he became facially eligible for the status adjustment, he drove several hours with his wife and newborn baby to attend a deportation hearing on January 21, 1998 at 1:00 p.m., only to discover that the hearing had been scheduled for 11:00 a.m. and that he had been ordered deported in absentia. On the record before us, it appears Singh is eligible for adjustment of status as the spouse of a U.S. citizen and the beneficiary of an immediate relative immigrant petition approved by the INS. 8 U.S.C. § 1255(a) (2002). Indeed, the INS commendably conceded at oral argument that apart from a few formalities that needed to be carried out, if the hearing had been held, Singh would not have been ordered deported. The IJ, however, denied Singh’s motion to reopen and rescind the deportation order. The BIA denied his appeal with a conclusory statement that there were not exceptional circumstances as required by 8 U.S.C. § 1252b(c)(3)(A) (1994). He appeals the BIA’s decision claiming that his is the exceptional case, and we agree. We review the BIA’s decision for abuse of discretion. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). We will reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985). A petitioner is entitled to reeission of a deportation order issued in absentia by filing a motion to reopen within 180 days of the date of the order of removal and by demonstrating that “exceptional circumstances” were the cause of the" } ]

[ { "docid": "23543049", "title": "", "text": "country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review. II. The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu’s motion to reopen, and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA’s ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted). Similarly, we review the BIA’s evidentiary rulings deferentially. See Cheng v. Att’y Gen., 623 F.3d 175, 182 (3d Cir.2010). III. With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief based on an untimely motion to reopen, Zhu had to provide material evidence of changed conditions in China that could not have been discovered or presented during the previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(h). Here, the BIA denied Zhu’s motion to reopen her removal proceedings because it found: (1) “[h]er evidence is not sufficient to establish a material change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing another late motion to reopen to apply for asylum,” and (2) she “has not demonstrated a prima facie case for protection under [CAT].” App. 6. To determine if the BIA abused its discretion in finding that Zhu did not present evidence to establish a material change in country conditions, we must determine if the BIA meaningfully considered the evidence and arguments Zhu presented. Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.2008). This does not mean that the BIA is required to expressly parse each point or discuss each" }, { "docid": "22664745", "title": "", "text": "PER CURIAM. Petitioner Sukhraj Kaur, a native and citizen of India, petitions this Court for review of a June 20, 2003 order of the Board of Immigration Appeals (“BIA” or “Board”) denying petitioner’s motion to reopen proceedings in order to submit “new evidence” regarding her asylum claim. In an earlier order, dated December 13, 2002, the BIA affirmed a decision by an immigration judge (“IJ”) denying petitioner’s application for asylum and withholding of removal, and further denied petitioner relief under the United Nations Convention Against Torture, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal. As a threshold matter, we note that our review is limited to the BIA’s decision not to reopen petitioner’s removal proceedings. Petitioner did not timely petition for review of the December 13, 2002 order of the BIA that affirmed the IJ’s denial of her underlying asylum application. It is also well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA’s final exclusion or deportation orders, such as the December 13, 2002 order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We are therefore “precluded from passing on the merits of the underlying exclusion proceedings,” and must confine our review to the denial of petitioner’s motion to reopen these proceedings. Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of a motion to reopen for abuse of discretion. Zhao, 265 F.3d at 92-93. “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 93 (internal citations omitted). Petitioner’s appellate brief argues the merits of her underlying asylum claim, but" }, { "docid": "23273767", "title": "", "text": "PER CURIAM. Zhao Quan Chen, a native and citizen of China, seeks review of a March 5, 2004 order of the Board of Immigration Appeals (“BIA”)-denying his motion to reconsider the BIA’s January 6, 2004 denial of the motion to reopen his immigration proceedings. This Court earlier denied Chen’s petition for review from the BIA’s November 9, 1999 decision affirming the IJ’s denial of a motion to reopen proceedings in which a deportation order was issued against Chen in absentia after Chen failed to appear at his hearing. See Zhao Quan Chen v. INS, 85 Fed.Appx. 223 (2d Cir.2003). On October 9, 2003, soon before this Court issued its decision, Chen filed a motion to reopen with the BIA, on the premise that, after the BIA’s 1999 decision, the INS approved an 1-140 petition filed by Chen’s employer on his behalf. The BIA denied Chen’s motion to reopen as untimely because it was filed more than 90 days after the issuance of the BIA’s final decision in 1999. See 8 C.F.R. § 1003.2(c)(2). Chen argued in his motion to reconsider—and argues again here—in the alternative (1) that his pending petition for review before this Court rendered the BIA’s decision non-final, and therefore the 90-day period had not yet begun to run; (2) that his pending petition for review before this Court equitably tolled the 90-day period; or (3) that the BIA should have granted the motion on humanitarian grounds notwithstanding its untimeliness. The BIA’s denial of a motion to reopen or reconsider is reviewed for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA abuses its discretion if it acts arbitrarily or capriciously, that is, when it provides no rational explanation, departs from established policies without explanation, or justifies its decision with only conclusory statements. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (per curiam). Here the BIA acted well within its discretion. With some exceptions not relevant here, a motion to reopen “shall be filed within 90 days of the date of entry of a final administrative order of" }, { "docid": "22892722", "title": "", "text": "Apt. # 101, Los Angeles, CA 90057, dated August 17, 2005. We note from the record of proceeding, that there is no evidence to corroborate this claim. Moreover, our prior decision was not returned to the Board undeliverable. As there is no error attributable to the Board in the service of its decision, we decline to accept the motion sua sponte. 8 C.F.R. § 1003.2(a). Accordingly, the motion is denied. II. ANALYSIS In the instant petition, Hernandez appeals only the BIA’s order denying her motion to reopen and reissue. Our review is, therefore, limited to consideration of that order, rather than the merits of Hernandez’s underlying claim for cancellation of removal. See INA § 242(b)(4), 8 U.S.C. § 1252(b)(4). We review questions of law, including constitutional claims, de novo. Masnauskas v. Gonzales, 432 F.3d 1067, 1069 (9th Cir.2005). We review the BIA’s denial of motions to reopen for abuse of discretion. Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996). The BIA abuses its discretion when it acts “arbitrarily], irrationally], or contrary to law.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000). An error of law is an abuse of discretion. See Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir.2002). Here, the BIA’s decision is “contrary to law,” because it conflicts with our prior holding in Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007). In Singh we held that when a petitioner offers evidence, in the form of an affidavit, tending to show that the BIA failed to comply with its notice obligations, the BIA must consider the “weight and consequences” of that affidavit before denying the petitioner’s motion to reopen and must “specifically address what procedures or processes exist to assure that petitioners are notified of the BIA’s decisions.” Id. at 1173. We held that the BIA decision denying Singh’s motion to reopen and reinstate/reissue was insufficient because it failed to provide any explanation of how the BIA reached its conclusion that its prior decision had been properly mailed to Singh, and because it failed to consider properly the affidavits submitted by Singh and his attorney stating" }, { "docid": "22319359", "title": "", "text": "BIA’s February 23, 2004 order denying Filja’s motion to reopen. II. Jurisdiction and Standard of Review We have jurisdiction of the Filjas’ petition under 8 U.S.C. § 1252, which grants federal courts of appeals jurisdiction to review final orders of the BIA. We must uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review the BIA’s conclusions of law de novo. We review the BIA’s denial of a motion to reopen for abuse of discretion, Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001), and review its underlying factual findings related to the motion for substantial evidence. Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s denial of a motion to reopen may only be reversed if it is “arbitrary, irrational, or contrary to law.” Id. at 174 (internal quotation marks omitted). III. Discussion A. Timeliness' of Petition to Reopen: The IJ held the Filjas’ asylum hearing on June 28, 1996, denying asylum and withholding of deportation on January 16,1997. In June 1997, the Socialist Party returned to power in Albania. On March 19, 2002, the BIA dismissed the Filjas’ appeal. On October 9, 2003, the Filjas moved under 8 C.F.R. § 1003.2(c)(3)(ii) to reopen and to remand to the IJ to reapply for asylum and withholding of deportation due to changed country conditions and to apply for relief under the CAT. The BIA held that the motion to reopen was untimely, interpreting § 1003.2(c) as requiring that, although the country conditions in Albania had changed subsequent to the date of the IJ’s 1997 decision, the motion should have been made prior to the BIA’s March 19, 2002 decision. Under the applicable regulation, a motion to reopen removal proceedings “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Excepted from this time limitation set forth in paragraph (c)(2) are" }, { "docid": "22189236", "title": "", "text": "were terminated by application of pertinent statutes and regulations, not as the result of ineffective assistance of counsel,” is clearly erroneous. Indeed, in his motion to reopen Alcala specifically argued before the BIA that, given the existence of “two conflicting interpretations of the interplay” between the provisions governing reinstatement of removal, waiver of inadmissibility, and adjustment of status, the IJ would have been able to grant the discretionary relief Alcala sought and might have done so had counsel effectively presented the arguments in Alcala’s favor. In the BIA decision denying Alcala’s motion to reopen, the Board strangely characterizes Alcala’s “Motion To Reopen Based On Ineffective Assistance Of Counsel” as a motion to reconsider, then asserts that it will nonetheless construe this motion as “one to reopen.” The decision also states “it is difficult to envision what [Alcala’s counsel] could have argued at the hearing to avoid termination of proceedings,” although Alcala’s motion presented the same argument for granting discretionary relief that we later accepted. See Perez-Gonzalez, 379 F.3d at 795-96(“The statutory provisions in § 241(a)(5), § 245(i), and § 212(a) should be read to harmonize with one another, rather than allowing § 241(a)(5) to render the other provisions totally or partially meaningless.”). The BIA’s cursory, borderline-inaccurate resolution of Alcala’s motion to reopen reveals an abuse of discretion that further solidifies the appropriateness of our review. Cf. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (“We have long held that the BIA abuses its discretion when it fails to provide a reasoned explanation for its actions.”). Alcala’s potentially meritorious ineffective assistance claim gives us jurisdiction over his appeal from the BIA’s denial of his motion to reopen because it states a colorable due process claim that we are authorized to review under 8 U.S.C. § 1252(a)(2)(D). Indeed, we have on several occasions explicitly acknowledged our potential jurisdiction over appeals such as Alcala’s. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.2006) (per curiam) (“This court retains jurisdiction over petitions for review that raise colorable constitutional claims or questions of law.”); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir.2003)" }, { "docid": "22228599", "title": "", "text": "REINHARDT, Circuit Judge. Luis Franco-Rosendo and Eulalia Zaca-rías de Franco, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals (“BIA”) decision of September 24, 2004, denying their motion to reopen. We grant their petition and remand to the BIA for further consideration. The petitioners entered the United States from Mexico without inspection on or about April 25, 1990. They are married and currently reside in Reedley, California with their four United States citizen children. On December 3, 2001, the petitioners were issued a Notice to Appear. In the subsequent hearing, the couple conceded removability but requested cancellation of removal. The Immigration Judge (“IJ”) denied their request. The IJ’s decision was affirmed by the BIA on the ground that the couple failed to demonstrate that their United States citizen children would suffer “exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(l)(D). The BIA instead granted voluntary departure. By the time voluntary departure was granted, however, the female petitioner had become seriously ill. The couple failed to pay their departure bond and thus, they argue, effectively declined the offer of voluntary departure. The couple then filed a timely motion to reopen on July 23, 2004, providing the BIA with information about the female petitioner’s illness and the likely effect on her four United States citizen children if their critically ill mother were deported. In its opinion, the BIA assumed that the couple’s failure to depart did not make them statutorily ineligible for relief, but denied the motion to reopen in the exercise of its discretion. Petitioners request review from this Court. We review BIA denials of motions to reopen for abuse of discretion. Medina-Morales v. Ashcroft, 371 F.3d 520, 529 (9th Cir.2004). The BIA abuses its discretion when it acts “arbitrarily, irrationally, or contrary to law.” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). In order for the court to exercise our limited authority, there must be a reasoned explanation by the BIA of the basis for its decision. Movsisian v. Ashcroft, 395 F.3d 1095," }, { "docid": "22708022", "title": "", "text": "for relief. While we could review that ruling for its soundness, Ontive-ros-Lopez instead urges us to grant relief on the basis of ineffective assistance of counsel. This we cannot do. Ontiveros-Lopez’s direct appeal of the IJ’s deportation order to the BIA did not present ineffective assistance of counsel as a ground for relief, and the BIA did not have the opportunity to develop a record and pass on the issue. We therefore deny the first petition for its failure to satisfy the administrative exhaustion requirement. Ill The second petition asks us to review the BIA’s denial of Ontiveros-Lopez’s motion to reopen his deportation proceedings on the basis of ineffective assistance of counsel. The motion to reopen squarely presented the ineffective assistance of counsel claim to the BIA, and the claim has therefore been properly exhausted. We have jurisdiction to review the BIA’s denial of the motion to reopen under Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). We review the denial of a motion to reopen for an abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). “An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.” Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995) (internal quotation marks omitted). We hold that the BIA abused its discretion in this case. Although the BIA acts within its discretion to impose the heightened Lozada procedural requirements, see 8 C.F.R. § 3.2(c); INS v. Jong Ha Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam), it may not impose the Lozada requirements arbitrarily. See Castillo-Perez v. INS, 212 F.3d 518, 525-27 (9th Cir.2000); Escobar-Grijalva, 206 F.3d at 1335 (describing the requirements of Lozada as “reasonable rules for the normal ineffective assistance claim” but “not dispositive” under the circumstances of the case). In this case, the BIA may not ignore counsel’s declaration, attached to the motion to reopen, describing his diligent efforts to obtain the materials necessary for meeting the Lozada standard. Documents were requested from Ontiveros-Lopez’s original" }, { "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": "22761555", "title": "", "text": "PER CURIAM: Bruno Delgado-Ortiz (“Delgado-Ortiz”) and Veronica Vasquez-Iniguez (“VasquezIniguez”) (collectively “Petitioners”) are natives and citizens of Mexico. They petition for review of the Board of Immigration Appeals’ (“BIA”) final order denying their motion to reopen to apply for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(b) to review the BIA’s denial of a motion to reopen. See Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). Because we find that the BIA did not abuse its discretion in determining that Petitioners did not present a prima facie case and that Petitioners’ proposed social group, “returning Mexicans from the United States,” was too broad to qualify for the requested relief, we deny the petition for review. I. Delgado-Ortiz and Vasquez-Iniguez, husband and wife, entered the United States in February 1993 and January 1992, respectively, without admission or parole after inspection by an immigration officer. The government issued Notices to Appear on June 27, 2003, and Petitioners conceded removability at the initial removal hearing. Petitioners withdrew their previously-filed applications for asylum, withholding of removal, and CAT protection, but applied for cancellation of removal under Section 240A(b)(l) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(l), and voluntary departure under Section 240B(b) of the INA, 8 U.S.C. § 1229c(b). An immigration judge denied Petitioners’ applications for cancellation of removal and granted Petitioners voluntary departure in an order dated April 19, 2006. On December 6, 2007, the BIA dismissed Petitioners’ appeal, agreeing with the immigration judge that they did not qualify for cancellation of removal because they failed to show that their removal would result in exceptional and extremely unusual hardship to their qualifying relatives, namely their United States citizen daughter and Vasquez-Iniguez’s lawful permanent resident mother. The BIA granted Petitioners permission to voluntarily depart from the United States. Petitioners did not depart, and on February 4, 2008, Petitioners filed a timely motion to reopen seeking to introduce new hardship evidence and to reapply for protection under the CAT. The BIA denied the motion to reopen on April" }, { "docid": "22436680", "title": "", "text": "the “well founded fear” of future persecution standard. Unfortunately for Zhang, his petition to this court on August 13, 2002, for review of these initial determinations came well after the thirty-day time limit imposed by the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-3546 (codified in scattered sections of Title 8 and 18) (IIRIRA). Under the IIRIRA, all final BIA orders must be appealed to this court within thirty days. 8 U.S.C. § 1252(b)(1). This need to timely appeal is a strict jurisdictional requirement. See Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005-06 (7th Cir.2003) (collecting cases). Moreover, this time to appeal asylum orders continues to run despite Zhang’s motions to reopen and reconsider; these motions are appealed separately. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). In this case, because Zhang appealed the BIA’s March 28, 2002, denial of asylum well over the thirty-day limit, we lack jurisdiction to review the underlying denial. However, Zhang timely appealed the BIA’s denial of his motion to reopen and reconsider. The BIA’s Denial of the Motion to Reopen A motion to reopen must “state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 3.2(c). Courts recognize two independent, but non-exclusive grounds on which the BIA may deny a motion to reopen: (1) failure to establish a prima facie case, and (2) failure to introduce previously unavailable, material evidence. See Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir.2003). Even if Zhang meets these requirements, the BIA may still use its discretion to deny relief. Id.; 8 C.F.R. § 3.2(a). We can only overturn the BIA’s decision for an abuse of discretion. Herbert v. Ashcroft, 325 F.3d 68, 70 (1st Cir.2003). Because Zhang failed to introduce any new material evidence, the BIA did not abuse its discretion in denying Zhang’s motion to reopen. The BIA has rationally explained and supported why it denied Zhang’s motion to reopen. It" }, { "docid": "23204770", "title": "", "text": "nor met the heavy burden governing the reopening of applications for asylum and withholding of removal. The Boudag-uians petition this court for judicial review of the BIA’s denial of their motion to reopen. We conclude the BIA did not abuse its discretion and deny their petition for review. 1. Much of the Boudaguians’ brief on appeal is devoted to persuading us that the BIA erred in initially upholding the IJ’s denial of asylum and withholding of removal. In Stone v. I.N.S., 514 U.S. 386, 398-401, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), the Supreme Court held that Congress, in amending the Immigration and Nationality Act, intended to depart from the normal rule that the timely filing of a motion to reconsider tolls the time for appeal of the underlying order until the agency rules on the motion to reconsider. Therefore, an order denying relief from deportation (now called removal) is final when issued and must be appealed within the statutorily prescribed period. Following Stone, Congress substantially rewrote the statute in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. But the wording of the relevant judicial review provision is the same. Compare 8 U.S.C. § 1252(b)(6), with 8 U.S.C. § 1105a(a)(6) (1990). Accordingly, we lack jurisdiction to review the BIA’s initial order because the Boud-aguians did not file a timely petition for review of that order. See Raffington v. I.N.S., 340 F.3d 720, 724 (8th Cir.2003). Our jurisdiction is limited to review of the BIA order denying the Boudaguians’ motion to reconsider its initial decision or to reopen the asylum proceedings. We review such orders for abuse of discretion. See 8 C.F.R. § 1003.2(a); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir.2003). 2. Before the BIA, the Boudaguians’ motion to reopen primarily argued that the evidence previously submitted to the IJ established that they suffered past persecution and have a well-founded fear of future persecution in Latvia. Treating this part of the motion as a motion to reconsider, the BIA denied it “because the [Boudaguians] have not demonstrated any error in our decision of June 26, 2002," }, { "docid": "6469728", "title": "", "text": "a motion to reopen Oliveras’ immigration proceedings on grounds that she had been denied effective assistance of counsel by Attorney Luff. The Immigration Judge (“IJ”) denied this motion on December 20, 2002, finding that it was time-barred. Oliveras appealed this denial to the BIA, who on February 5, 2004, affirmed the IJ’s order. Specifically, the BIA found that Oliveras had failed to satisfy the requirements for the establishment of an ineffective assistance of counsel claim under BIA precedents in In re Assaad, 23 I. & N. Dec. 553 (BIA 2003) and Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Oliveras did not seek judicial review. Three years later, on March 30, 2007, Oliveras’ fourth lawyer filed a second motion to reopen Oliveras’ immigration proceedings directly with the BIA. In that petition, Oliveras alleged that she had fixed the shortcomings of her ineffective assistance claim by fulfilling all of the Lo-zada requirements. The BIA nonetheless denied this motion on September 27, 2007, finding that it was both time and number-barred. The BIA also held that equitable tolling did not apply to Oliveras’ second petition because Oliveras had failed to exercise due diligence. Oliveras now seeks judicial review. II. Discussion A. Standard of Review Motions to reopen removal proceedings are disfavored as contrary to the “compelling public interests in finality and the expeditious processing of proceedings.” Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir.2007) (quoting Raza v. Gonzáles, 484 F.3d 125, 127 (1st Cir.2007)). Consistent with this policy, we review the BIA’s denial of a motion to reopen under a deferential abuse of discretion standard. Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir.2008). Accordingly, we will uphold the denial of a motion to reopen unless we conclude that the BIA either committed a material error of law or exercised its authority in an arbitrary, capricious or irrational manner. Id. In carrying out this inquiry, we review the BIA’s findings of law de novo, granting due deference to the BIA’s reasonable interpretation of the statutes and regulations within its purview. See Lin v. Mukasey, 521 F.3d 22, 26" }, { "docid": "6469729", "title": "", "text": "held that equitable tolling did not apply to Oliveras’ second petition because Oliveras had failed to exercise due diligence. Oliveras now seeks judicial review. II. Discussion A. Standard of Review Motions to reopen removal proceedings are disfavored as contrary to the “compelling public interests in finality and the expeditious processing of proceedings.” Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir.2007) (quoting Raza v. Gonzáles, 484 F.3d 125, 127 (1st Cir.2007)). Consistent with this policy, we review the BIA’s denial of a motion to reopen under a deferential abuse of discretion standard. Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir.2008). Accordingly, we will uphold the denial of a motion to reopen unless we conclude that the BIA either committed a material error of law or exercised its authority in an arbitrary, capricious or irrational manner. Id. In carrying out this inquiry, we review the BIA’s findings of law de novo, granting due deference to the BIA’s reasonable interpretation of the statutes and regulations within its purview. See Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir.2008); Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir.2008). B. Motion to Reopen In general, the right of an alien in removal proceedings to file a motion to re open is limited both numerically and temporally. Guerrero-Santana, 499 F.3d at 93. Thus, an alien may ordinarily file only one motion to reopen a removal proceeding and that motion must be filed within ninety days of the issuance of the final administrative decision, in this case, the final deportation order. Id.; see also 8 C.F.R. § 1003.23(b)(1). Because the present petition involves Oliveras’ second motion to reopen, which was filed more than ten years after the issuance of the final deportation order against her, Oliveras relies on statutory exceptions to the filing deadline, and alternatively, on due process and equitable tolling arguments to support her contention that the BIA abused its discretion in denying her motion. We are not persuaded. 1. Exceptional Circumstances Oliveras argues that the time and numerical limitations provisions applicable to her case are those provided by 8 C.F.R. § 1003.23(b)(4)(iii)(A)," }, { "docid": "22189237", "title": "", "text": "§ 245(i), and § 212(a) should be read to harmonize with one another, rather than allowing § 241(a)(5) to render the other provisions totally or partially meaningless.”). The BIA’s cursory, borderline-inaccurate resolution of Alcala’s motion to reopen reveals an abuse of discretion that further solidifies the appropriateness of our review. Cf. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (“We have long held that the BIA abuses its discretion when it fails to provide a reasoned explanation for its actions.”). Alcala’s potentially meritorious ineffective assistance claim gives us jurisdiction over his appeal from the BIA’s denial of his motion to reopen because it states a colorable due process claim that we are authorized to review under 8 U.S.C. § 1252(a)(2)(D). Indeed, we have on several occasions explicitly acknowledged our potential jurisdiction over appeals such as Alcala’s. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.2006) (per curiam) (“This court retains jurisdiction over petitions for review that raise colorable constitutional claims or questions of law.”); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir.2003) (“We retain jurisdiction to review constitutional claims, even when those claims address a discretionary decision.”); cf. Lopez v. Gonzales, 210 Fed.Appx. 690, 691 (9th Cir.2006) (unpublished table decision) (“Byron Lopez ... petitions for review of the[BIA’s] order summarily affirming, without opinion, an [IJ’s] order denying his application for adjustment of status.... Lopez’s contention that the IJ failed to properly weigh the equities is not a colorable due process claim, and so does not confer jurisdiction.” (internal citations omitted)). If we relinquish jurisdiction here, it is likely that we relegate the egregious performance of Alcala’s counsel to an unreviewable purgatory. Though we acknowledged in Morales-Izquierdo v. Gonzales that “individual petitioners may raise procedural [due process] defects in their particular [reinstatement] cases,” it is doubtful that this review would encompass matters beyond the “narrow and mechanical determinations immigration officers must make” — determinations that have already been made here — in order to reinstate orders of removal. 486 F.3d at 496; see also Garcia de Rincon v. DHS, 539 F.3d 1133, 1137 (9th Cir.2008) (“[R]eview of the" }, { "docid": "22061855", "title": "", "text": "be subject to future torture in Guinea.” Id. Concluding that Fadiga had therefore “failed to demonstrate prima facie eligibility” for withholding under either section 241(b)(3) of INA or Article III of the CAT, and that he thus could not establish “that he has been prejudiced by the actions of his former attorney,” the BIA dismissed Fadiga’s appeal and denied his motion to reopen. Id. Fadiga filed a timely petition for review in this court, and he now challenges the final order of removal on the ground that the BIA erroneously denied his motion to reopen as to withholding of removal under the INA and protection under the CAT. II. JURISDICTION AND SCOPE OF REVIEW The Immigration Court had jurisdiction over Fadiga’s application for asylum, withholding of removal and protection under the CAT pursuant to 8 C.F.R. § 1208.2(b). The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b) and was authorized to consider Fadiga’s motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(4). See Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir.2005) (motion to reopen filed during pendency of appeal is properly heard by BIA). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). Because “there is no ‘final order’ until the BIA acts,” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001), we review only the decision of the BIA, “absent special circumstances not present here.” Id. at 545. “[W]e review the [BIA’s] denial of a motion to reopen for abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). “Under the abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002) (internal quotation marks omitted). However, we review de novo the Board’s determination of an underlying procedural due process claim. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1362, 164 L.Ed.2d 72 (2006); De Leon-Reynoso v. Ashcroft, 293 F.3d" }, { "docid": "17108534", "title": "", "text": "motion as an exercise of discretion. We may uphold a decision of the BIA, however, solely on the grounds given by the agency. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA’s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.”). Because the BIA denied Singh’s motion only for lack of authority, we grant the petition and remand to the BIA. In sum, we hold the BIA erred when it denied Singh’s motion to reopen for lack of authority. Because the BIA’s decision was contrary to law, it abused its discretion. We grant the petition for review in No. 10-72626 and remand to the BIA for an exercise of the agency’s discretion. See Kalilu, 548 F.3d at 1218. We express no opinion on how that discretion should be exercised. We deny the petition for review in No. 09-73798 for the reasons stated in a concurrently filed memorandum disposition. In No. 09-73798, PETITION DENIED. In No. 10-72626, PETITION GRANTED; REMANDED. . DHS possesses the authority to grant a slay of removal under 8 C.F.R. §§ 241.6(a) and 1241.6(a), although Singh asserts that DHS’s denial of a stay is not subject to judicial review. . It is not clear whether the BIA denied Singh's motion to reopen under § 1003.2(a), under § 1003.2(c) or under both of these provisions. Regardless, we have jurisdiction to review the BIA’s decision even if it acted solely under § 1003.2(a); the government does not argue to the contrary. . Section 1003.2(f) states: Stay of deportation. Except where a motion is filed pursuant to the provisions of §§ 1003.23(b)(4)(h) and 1003.23(b)(4)(iii)(A), the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case. Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board, the Immigration Judge, or an authorized officer of" }, { "docid": "19968604", "title": "", "text": "has voted to DENY the petition for panel rehearing. No future petitions for rehearing shall be entertained. OPINION PER CURIAM: Abraham Kalilu (“Kalilu”), a twenty-seven-year-old native and citizen of Liberia, seeks review of the Board of Immigration Appeals’ (“BIA”) adverse decision determining that he filed a frivolous asylum application, denying his claims for asylum and withholding of removal, denying his request for voluntary departure, and denying his motion to reopen. Petitioner raises two principal challenges to the BIA’s decision. First, he argues that the BIA’s frivolousness determination cannot be sustained because he was not afforded the required procedural safeguards, including notice and an opportunity to respond. Second, he argues that the BIA abused its discretion in denying his motion to reopen so that he could have an opportunity to pursue adjustment of status on the basis of his marriage to a United States citizen. We have jurisdiction over both of these claims pursuant to 8 U.S.C. § 1252, and we grant the petition for review. A. A determination that an applicant filed a frivolous asylum application renders the applicant permanently ineligible for immigration relief. 8 U.S.C. § 1158(d)(6). Petitioner contends that the BIA erred in affirming the IJ’s frivolous asylum application determination in his case. On April 25, 2007, the BIA provided guidance for when an asylum application may be found frivolous in accordance with the statute and governing regulation. See In re Y-L-, 24 I. & N. Dec. 151,155 (BIA 2007). Since these guidelines were issued five months after the BIA considered Petitioner’s appeal, we grant the petition in part and remand so that the BIA may apply the standards set forth in In re Y-L- to Petitioner’s case in the first instance. B. Petitioner also argues that the BIA abused its discretion in denying his motion to reopen. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004) (reviewing denial of motion to reopen for abuse of discretion). The BIA held that Petitioner’s motion to reopen “must be denied” because a newly-enacted regulation clarified that, as an arriving alien, Petitioner “must pursue any application for adjustment of status" }, { "docid": "22319358", "title": "", "text": "of ineffective assistance of his former counsel. The BIA stated that “while the respondent appears to have complied with requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) he has failed to demonstrate that his former counsel’s performance was so inadequate that it prejudiced the outcome of proceedings.” The BIA set forth the legal principles governing relief under the CAT and held that Fiíja failed to demonstrate prima fa-cie eligibility for its protection because “[t]he evidence of record fails to indicate that it is more likely than not that respondent will face torture upon his return to Albania,” and, further, “his arguments, in substantial part, consist of the same arguments previously presented in support of his applications for asylum and withholding of deportation which were denied both by the Immigration Judge and by the Board.” On March 22, 2004, Fiíja filed with the BIA a motion to reconsider and/or request for en banc review. The BIA denied the motion to reconsider. The Filjas now petition for review of the BIA’s February 23, 2004 order denying Filja’s motion to reopen. II. Jurisdiction and Standard of Review We have jurisdiction of the Filjas’ petition under 8 U.S.C. § 1252, which grants federal courts of appeals jurisdiction to review final orders of the BIA. We must uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review the BIA’s conclusions of law de novo. We review the BIA’s denial of a motion to reopen for abuse of discretion, Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001), and review its underlying factual findings related to the motion for substantial evidence. Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s denial of a motion to reopen may only be reversed if it is “arbitrary, irrational, or contrary to law.” Id. at 174 (internal quotation marks omitted). III. Discussion A. Timeliness' of Petition to Reopen: The IJ held the Filjas’" }, { "docid": "5172659", "title": "", "text": "time and numerical limitations for filing a motion to reopen. 8 C.F.R. § 1003.2(c)(3)(ii) (2007). Accordingly, the instant motion is denied as barred by both the number and time limitations on motions to reopen. A.R. 3. Lindor filed a timely notice of petition for review with this court. II. DISCUSSION We review the denial of a motion to reopen for an abuse of discretion. Tapia-Martinez v. Gonzales, 482 F.3d 417, 421 (6th Cir.2007). Issues of law are reviewed de novo. Id. “The Supreme Court has made clear that reopening is discretionary with the BIA and that the BIA retains broad discretion to grant or deny such motions. Because the BIA has such broad discretion, a party seeking reopening or reconsideration bears a ‘heavy burden.’ ” Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir.2007) (citing INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)); see also Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004) (noting that the BIA’s discretion “is broad but is not unlimited”). “The BIA abuses its discretion when it acts arbitrarily, irrationally or contrary to law.” Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir.2003). In determining whether an abuse of discretion occurred, we must decide whether the denial of the motion to reopen “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005) (quotation marks omitted). A party must generally file a motion to reopen “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). However, one exception to this ninety-day time limit is for motions “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(e)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(h) (“The time" } ]

[ { "docid": "12791195", "title": "", "text": "the Government began its investigation of appellants’ taxes in 1968, appellants filed amended tax returns for the years in question reporting income as follows: YEAR GROSS INCOME TAXABLE INCOME INCOME TAX 1963 $ 50,165.00 $10,080.00 $ 2,579.00 1964 56,133.00 15,055.00 3,703.76- 1965 49,169.00 9,331.00 2,111.00 1966 52,428.00 8,794.58 2,027.38 $207,895.00 $43,260.58 $10,421.14 Thus, it is beyond question that appellants understated their income by at least $48,000 during the four years. The inquiry then is whether they did so willfully and whether the Government’s evidence was sufficient for the jury to so conclude and for the trial court to have denied appellants’ motions for judgments of acquittal. The attempt to evade or defeat the tax must be a willful attempt. The Government must prove beyond a reasonable doubt that there was an attempt made voluntarily and intentionally, and with the specific intent to keep from the Government a tax imposed by the tax laws. The accused must be shown by the evidence to have been under a duty to pay the Government and must be shown to have known that it was his legal duty to pay. Thus, the evidence must establish beyond a reasonable doubt a wrongful intent to evade the tax. Hargrove v. United States, 67 F.2d 820 (5th Cir. 1933). See also McCarty v. United States, 409 F.2d 793, 795 (10th Cir. 1969). Cf. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). Such intent may be proved by circumstantial evidence, upon which reasonable inferences can be based. Swallow v. United States, 307 F.2d 81, 83 (10th Cir. 1962); cf. Has-kell v. United States, 241 F.2d 790, 793 (10th Cir. 1957). Courts have held various types of evidence under various types of circumstances to support a reasonable inference of willfulness. For example, the most applicable statement by the Supreme Court in Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), regarded a pattern of un-derreporting to be sufficient: The petitioners contend that willfulness “involves a specific intent which must be proven by independent evidence and which" } ]

[ { "docid": "17280814", "title": "", "text": "389, 393-94, 54 S.Ct. 223, 78 L.Ed. 381 (1933) (judge erred in expressing to the jury his opinion that the government had met its burden in proving willful failure to provide information regarding tax returns). In a prosecution under § 7203, the Government need not produce direct evidence to show guilty intent; willfulness may be shown by means of circumstantial evidence alone. United States v. MacLeod, 436 F.2d 947, 949 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971). See also 10 Mertens, Law of Federal Income Taxation § 55A.09 (3d ed.). In this case, the prosecution offered evidence that when Schiff’s accountant reminded him of his obligation to file a personal income tax return for the calendar year 1974 the defendant objected to the preparation of the return and requested the accountant to, voice the constitutional objections to the IRS, and that the accountant declined to do so. In addition, the Government showed that the defendant had filed corporate income tax returns for 1974 and 1975, that he had filed personal income tax returns for years prior to 1974, and that he had received income in ' 1974 and 1975. The Government also demonstrated that the defendant filed no return at all for 1977, and offered credible evidence that notices of failure to file in 1974 and 1975 had been mailed to Schiff. Furthermore, Schiff, in his purported return, stated that for personal reasons he had found it inconvenient to keep any clear records of his finances for the years in question. There was, accordingly, sufficient evidence of willfulness. See United States v. MacLeod, supra, 436 F.2d at 950; United States v. Browney, 421 F.2d 48, 50 (4th Cir. 1970). Cf. United States v. Magnus, 365 F.2d 1007, 1011 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967) (prior taxpaying history probative of willfulness). Before the close of the prosecution case, therefore, the jury had heard testimony that the defendánt was required to file a return showing his income, that he failed to do so for several consecutive" }, { "docid": "4521120", "title": "", "text": "filing false returns. He says that failure to file is passive and filing false returns is active. Snow’s primary defense was that he was passive. He testified that he did not know anything about taxes and relied on either his wife or his accountant to file proper returns. Although evidence of his failure to file was consistent with his defense, he now complains that this evidence was prejudicial. Even if Snow can properly raise this objection now, it must be rejected. Both the failure to file and false filing require proof of willfulness. In United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), the Supreme Court gave willfulness the same meaning under failure to file as under false filing. In United States v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974), we held that in a failure to file case, evidence of false filing is relevant on the element oi willfulness. We have not had occasion since Bishop to consider whether the reverse is also true. In false filing cases, evidence of failure to file is admissible on the element of willfulness. United States v. Magnus, 365 F.2d 1007 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967), Emmich v. United States, 298 F. 5 (6th Cir.), cert. denied, 266 U.S. 608, 45 S.Ct. 93, 69 L.Ed. 465 (1924). Evidence that in 1970 Snow received an assessment of his 1968 tax liability from the State of California, which he paid in December 1971, was also properly admitted. It was relevant on the issue of willfulness. United States v. Magnus, supra. It was also relevant on the issue of credibility. It tended to support Mrs. Peterson’s testimony that she was engaged by the Snows to prepare their federal income tax returns after she told them that the Internal Revenue Service would soon learn of the state action. The Snows denied any correlation. We believe the testimony on Snow’s failure to file state and federal income tax returns was both relevant" }, { "docid": "12326790", "title": "", "text": "United States, 290 U.S. 389, 78 L.Ed. 381 (1933). In Murdock the defendant had declined to answer certain questions relating to his tax liability on Fifth Amendment grounds. He was prosecuted for “willfully” failing to supply information to revenue officials. During the course of the prosecution it was determined that he had not been justified in asserting his Fifth Amendment privilege. Murdock defended arguing that his refusal was not willful. The Supreme Court held he was entitled to an instruction that if his refusal was in good faith— that is, with an honest belief in the protection of the Fifth Amendment — it could not be willful. The thrust of the opinion is that willfulness requires proof that the act was done with knowledge it was wrongful. The Court discussed a number of ways of expressing this type of specific intent, and among the terms mentioned were “bad purpose” and “evil motive.” Id. at 394. See also Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). However, neither bad purpose nor evil motive is an independent element of a willful failure to file under § 7203. The term “evil motive” is merely a “convenient shorthand expression to distinguish liability based on conscious wrongdoing from liability based on mere carelessness or mistake.” Boardman v. United States, 419 F.2d 110, 114 (1st Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970). Thus the term expresses, in a brief way, the more cumbersomely stated concept of specific intent in Murdock, a concept the instructions must ultimately convey. See United States v. Platt, 435 F.2d 789, 793-795 (2d Cir. 1970); United States v. Matosky, 421 F.2d 410, 412 (7th Cir.), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970) (“the only bad purpose or bad motive necessary for the government to prove is a deliberate intention not to file returns which the defendant knew ought to be filed.”); Hayes v. United States, 407 F.2d 189, 195 (5th Cir.), petition for cert. dismissed, 395 U.S. 972, 89 S.Ct. 2133, 23 L.Ed.2d 777" }, { "docid": "114424", "title": "", "text": "all the financial circumstances of the taxpayer,” Spies [Spies v. United States ], 317 U.S. [492] at 498 [63 S.Ct. 364, 87 L.Ed. 418], or knowledge that the taxpayer “should have reported more income than he did.” Sansone [Sansone v. United States], 380 U.S. [343] at 353 [85 S.Ct. 1004, at 1011, 13 L.Ed.2d 882]. Bishop v. United States, supra at 360, 93 S.Ct. at 2017. Thus, rather than indicating that “bad purpose or evil motive” is a requirement to be proved in addition to the voluntary, intentional violation of a known legal duty, the Court’s statement indicates that “bad purpose or evil motive” is merely another way to convey the concept of willfulness. See United States v. McCorkle, 511 F.2d 482 (7th Cir. 1975) (en banc). Cases decided both before and after Bishop have been in agreement that “willfully” as used in § 7203 requires only that the Government prove a voluntary, intentional violation of a known legal duty. United States v. McCorkle, 511 F.2d 482 (7th Cir. 1975) (en banc); United States v. Bengimina, 499 F.2d 117 (8th Cir. 1974); United States v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974); United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); United States v. Matosky, 421 F.2d 410 (7th Cir.), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970); cf. Boardman v. United States, 419 F.2d 110 (1st Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970). The trial court’s instruction on willfulness in this case fairly and adequately charged the jury as to what the Government had to establish to support a conviction. There was clearly sufficient evidence for the jury to find that Pohlman’s failure to file was a voluntary, intentional violation of a known legal duty. In addition to the alleged error in instructions, the appellant contends that the court erred in the admission into evidence of conversations with Internal Revenue agents, receiving into evidence photocopies" }, { "docid": "10068168", "title": "", "text": "BOWNES, Circuit Judge. Defendant Stamford Sorrentino is charged with eight counts of tax evasion for the years 1975, 1976, 1977, and 1978. In each year he is alleged to have willfully attempted to evade a substantial part of his individual federal income tax liability in violation of 26 U.S.C. § 7201, and also to have willfully subscribed a materially false small business corporation income tax return in violation of 26 U.S.C. § 7206(1). Following a thirty-day jury trial in the United States District Court for the District of Massachusetts, Sorrentino was convicted on all eight counts. On appeal, he challenges three jury instructions, sundry evidentiary rulings, the trial courtroom seating arrangement, and a Jencks Act ruling. The elements of attempted tax evasion under § 7201 are (1) an additional tax due and owing, (2) an attempt to evade or defeat that tax, and (3) willfulness. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). The Government makes out a prima facie case under the net worth method of proof if it establishes the defendant’s opening net worth (computed as assets at cost basis less liabilities) with reasonable certainty and then shows increases in his net worth for each year in question which, added to his nondeductible expenditures and excluding his known nontaxable receipts for the year, exceed his reported taxable income by a substantial amount. See Holland v. United States, 348 U.S. 121, 125, 75 S.Ct. 127, 130, 99 L.Ed. 150 (1954); McGarry v. United States, 388 F.2d 862, 864 (1st Cir.1967), cert, denied, 394 U.S. 921, 89 S.Ct. 1178, 22 L.Ed.2d 455 (1969). The jury may infer that the defendant’s excess net worth increases represent unreported taxable income if the Government either shows a likely taxable source, Holland, 348 U.S. at 137-38, 75 S.Ct. at 136, or negates all possible nontaxable sources, United States v. Massei, 355 U.S. 595, 78 S.Ct. 495, 2 L.Ed.2d 517 (1958); the jury may further infer willfulness from the fact of underreporting coupled with evidence of conduct by the defendant tending to mislead or conceal. Holland, 348" }, { "docid": "2594425", "title": "", "text": "omission is sufficient to commit the misdemeanor proscribed by § 7203, while a willful commission is required to commit the felony proscribed by § 7201. A succinct discussion of the issue presented in the instant case is found in United States v. Schipani, 362 F.2d 825, 831 (2d Cir. 1966), cert. den. 385 U.S. 934, 87 S.Ct. 293, 17 L.Ed.2d 214, where the Court stated: “ ‘Willfully’ under § 7203 calls only for proof that the taxpayer failed to file his tax return intentionally and knowingly and not through accident or mistake or other innocent cause. ‘Willfully’ under § 7201 calls for proof that the taxpayer failed to file a tax return with the specific intention of evading or defeating payment of the tax. The context of the respective statutes makes this perfectly clear, and they have been so interpreted and construed by the Supreme Court. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Spies v. United States, [317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)].” See also United States v. Fahey, 411 F.2d 1213, 1214 (9th Cir. 1969), where the Court stated: “ * * * Unlike some other circuits, we suggest that Congress intended to draw a distinction between an intent to defraud (which intent must be willful), and a willful intent to fail to file, which may or may not involve an intent to defraud. For example, one might honestly plan and intend to pay the tax revenues due his Government at some future time subsequent to the required filing date, and hence have no intent to defraud. If one intentionally fails to file a return (or keep records, or supply information) at the times required by. law, with full knowledge he was required to do so (whether or not he can pay), would it not be an intentional act — not to defraud, but to file the required return ? The Supreme Court has held it to be. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). ‘This misdemeanor requires only wilfulness and" }, { "docid": "1221019", "title": "", "text": "Estate of Clarke, 54 T.C. 1149 (1970); and Western Supply and Furnace Co., 18 CCH Tax Ct.Mem. 288, 301-02 (1959). . Hilda Parr testified that at her death the ranch would pass to her young son. . United States v. Cole, 463 F.2d 163, 167 (2d Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972); United States v. Burdick, 221 F.2d 932 (3d Cir.), cert. denied, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742 (1955); White v. United States, 216 F.2d 1, 5 (5th Cir. 1954); Gendelman v. United States, 191 F.2d 993, 996 (9th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952); Schuermann v. United States, 174 F.2d 397, 399 (8th Cir.), cert. denied, 338 U.S. 831, 70 S.Ct. 69, 94 L.Ed. 541 (1949). . United States v. Schenck, 126 F.2d 702, 704 (2d Cir. 1942); Tinkoff v. United States, 86 F.2d 868, 878-79 (7th Cir. 1936), cert. denied, 301 U.S. 689, 57 S.Ct. 795, 81 L.Ed. 1346 (1937). See also Reynolds v. United States, 225 F.2d 123, 127 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955), citing Tinkoff, supra. . That being the relevant element of § 7201. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Lawn v. United States, 355 U.S. 339, 361, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). And we have noted that a showing of some omitted items of income in the year in question suffices for this element of the crime. Kowalsky v. United States, 290 F.2d 161 (5th Cir.), cert. denied, 368 U.S. 875, 82 S.Ct. 120, 7 L.Ed.2d 76 (1961). . E. g., Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916 (1930). . Rutkin, supra, note 7. . Even disregarding the $40,000 Fender transaction, reclassified as ordinary income, and giving due allowance to Parr’s argument that if he did derive benefits he did so only as a member of Parr Cattle Company, a partnership with his nephew, Archer. The partnership returns for" }, { "docid": "4521121", "title": "", "text": "whether the reverse is also true. In false filing cases, evidence of failure to file is admissible on the element of willfulness. United States v. Magnus, 365 F.2d 1007 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967), Emmich v. United States, 298 F. 5 (6th Cir.), cert. denied, 266 U.S. 608, 45 S.Ct. 93, 69 L.Ed. 465 (1924). Evidence that in 1970 Snow received an assessment of his 1968 tax liability from the State of California, which he paid in December 1971, was also properly admitted. It was relevant on the issue of willfulness. United States v. Magnus, supra. It was also relevant on the issue of credibility. It tended to support Mrs. Peterson’s testimony that she was engaged by the Snows to prepare their federal income tax returns after she told them that the Internal Revenue Service would soon learn of the state action. The Snows denied any correlation. We believe the testimony on Snow’s failure to file state and federal income tax returns was both relevant and admissible. Affirmed. . “Any person who willfully fails to pay such tax . shall be guilty of a misdemeanor . . . .” Int.Rev.Code of 1954, § 7203. “Any person who — (1) . . . [w]illfully makes and subscribes any return . . . which he does not believe to be true . . shall be guilty of a felony . . .” Id. § 7206. . Only United States v. Long, 257 F.2d 340 (3rd Cir. 1958), is to the contrary. Long was rejected in United States v. O’Connor, 433 F.2d 752, 755 (1st Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971)" }, { "docid": "23051364", "title": "", "text": "U.S. —-, 117 S.Ct. 255, 136 L.Ed.2d 181 (1996)). Both § 7201 and § 7206(1) require that the government prove that the defendant acted willfully. And the Supreme Court has made clear that in order to avoid snaring people in the tangled net of the tax code solely due to their incompetence, willfulness under the tax laws requires “ ‘a voluntary, intentional violation of a known legal duty.’ ” Cheek v. United States, 498 U.S. 192, 200-01, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (quoting United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973)); see also Klausner, 80 F.3d at 62-63. As we have often explained, a defendant’s past taxpaying record is admissible to prove willfulness circumstantially. See, e.g., Klausner, 80 F.3d at 63 (holding that failure to file income tax returns and underestimating tax liability for purposes of estimated payments for the tax years at issue constituted evidence of willfulness); United States v. Ebner, 782 F.2d 1120, 1126 n. 7 (2d Cir.1986) (“The jury may consider evidence of intent to evade taxes in one year as evidence of intent to evade payment in prior or subsequent years.”); United States v. Magnus, 365 F.2d 1007, 1011 (2d Cir.1966) (“[P]rior taxpaying history, both federal and state, was probative of [taxpayers wilfulness in failing to pay substantial amounts of federal taxes in [the years at issue.]”), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967). As a simple matter of logic, Bok’s failure to file state or federal returns for either himself or his corporations until told to do so by the IRS is indicative of an intent to evade the tax system. This is particularly true in light of Bok’s legal education, which included coursework in both corporate and personal taxation. Although it is generally the favored practice for the trial court to require the government to wait before putting on its similar act evidence until the defendant has shown that he will contest the issue of intent, see United States v. Colon, 880 F.2d 650, 660 (2d Cir.1989), “such evidence is" }, { "docid": "23606424", "title": "", "text": "is predicated on the assumption that the meaning of “willfully fails * * * to make such return” in Section 7203 is to be equated with the meaning of “willful” in Section 7201, the felony statute. However, by comparison, Section 7201 refers to one “who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof.” The felony statute requires the affirmative act of evasion, while the misdemeanor is an omission of a duty to make a return. This distinction was clearly recognized by the Supreme Court in Sansone v. United States, 380 U.S. 343, 350-354, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Spies v. United States, 317 U.S. 492, 497-500, 63 S.Ct. 364, 87 L.Ed. 418 (1943) ; and United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 78 L.Ed. 381 (1933). Following Sansone and Spies is United States v. Schipani, 2 Cir., 362 F.2d 825, 831 (1966), cert. denied, 385 U.S. 934, 87 S.Ct. 293, 17 L.Ed.2d 214; and following Sansone is United States v. Fahey, 9 Cir., 411 F.2d 1213, 1214 (1969), cert. denied, 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422. All of these cases were correlated and cited with approval by our court in United States v. Matosky, 7 Cir., 421 F.2d 410, 411-413 (1970), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62. There the defendant was convicted of a charge of failure to file timely income tax returns for the years 1962, 1963 and 1964, in violation of Section 7203, and the only issue for trial by the jury was that of willfulness. We noted there that defendant’s argument “that the test of ‘willfulness’ is the same under § 7203, as it is under § 7201” had been rejected in Sansone. We conclude that Section 7203 is constitutional on its face. In support of defendant’s contention that the statute was unconsitutionally applied to himself, he argues that the trial court erred in excluding his proffered testimony of Dr. Lawrence Freedman, a psychiatrist. This witness was asked a series of hypothetical" }, { "docid": "19019087", "title": "", "text": "in question. On his returns, he reported net taxable income of $4,525.00; 9,235.32; and 11,-823.94 for those three years. He paid a total of $4,294.24. At trial, the government’s expert witness, who based his testimony solely upon the evidence adduced in court, calculated the defendant’s net taxable income at $51,935.17; 58,897.28; and 92,567.36 for the same three respective years. The expert witness further testified that the tax on that net income would total $64,505.69, a figure over fifteen times the amount which the defendant actually declared and paid. In this criminal prosecution for the willful evasion of income taxes, the government was required to prove three elements of the crime beyond a reasonable doubt: (1) an additional tax due and owing, (2) an attempt to evade or defeat such taxes, and (3) willfulness. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Holland v. United States, 348 U.S. 121, 130-139, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Calles, 5 Cir. 1973, 482 F.2d 1155,1158. In any tax evasion case where the government attempts to prove the violation through the net worth method, the jury is necessarily asked to determine guilt or innocence largely through circumstantial evidence. Specifically, the jury is asked to infer guilt from the existence of a substantial increase in net worth, which, when coupled with the negation of all reasonably possible sources of non-taxable income, can only be attributed to unreported taxable income. See Holland v. United States, supra, 348 U.S. at 125, 75 S.Ct. 127; United States v. Tunnell, 5 Cir. 1973, 481 F.2d 149, cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974); Merritt v. United States, 5 Cir. 1964, 327 F.2d 820. See also United States v. Horton, 5 Cir. 1976, 526 F.2d 884, 886, cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976). Because of the dangers inherent in this type of prosecution, where many figures represent only approximations and where the defendant has a constitutional right to remain silent and put the government to its proof, the" }, { "docid": "1671605", "title": "", "text": "(1984). We may grant the motion only if we conclude that “no rational jury could conclude beyond a reasonable doubt that the defendant ] willfully attempted to evade [his] tax obligations.” Id. III. THE MERITS OF CROCKER’S MOTION FOR JUDGMENT OF ACQUITTAL Crocker’s counsel raised three grounds in his motion for judgment of acquittal: (1) insufficiency of the evidence, (2) expiration of the statute of limitations, and (3) violation of the Paperwork Reduction Act. We shall treat each of these issues in turn. A. Insufficiency of the Evidence The elements the government must prove to establish guilt of tax evasion under 26 U.S.C. § 7201 (1988) are (1) an affirmative act to evade or defeat payment of a tax, (2) the existence of a tax deficiency, and (3) willfulness. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965); Ashfield, 735 F.2d at 105. The elements of failure to file a tax return under 26 U.S.C. § 7203 (1988) are (1) the defendant was required to file a return, (2) the defendant failed to file a return, and (3) willfulness. See Sansone, 380 U.S. at 351, 85 S.Ct. at 1010; United States v. Edelson, 604 F.2d 232, 235 n. 2 (3d Cir.1979). Defense counsel contends that the government’s evidence was insufficient on the affirmative act element of tax evasion and on the willfulness element of both offenses. The affirmative act element of tax evasion may be met by evidence of “the affirmative act of filing a fraudulent W-4” in which an employee falsely claims to be exempt from withholding. See United States v. Connor, 898 F.2d 942, 944-45 (3d Cir.), cert. denied, — U.S. -, 110 S.Ct. 3284, 111 L.Ed.2d 793 (1990). The element of willfulness is defined as the “voluntary, intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976); Ashfield, 735 F.2d at 105. As to the affirmative act requirement, defense counsel argues that the government has only established this element for the 1984 tax year, because this was" }, { "docid": "14093127", "title": "", "text": "Spies [v. United States], 317 U.S. [492], at 498, 63 S.Ct. [364], at 368 [87 L.Ed. 418], or knowledge that the taxpayer “should have reported more income than he did.” Sansone [v. United States], 380 U.S. [343], at 353, 85 S.Ct. [1004], at 1011 [13 L.Ed.2d 882], . In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. . . . The Court’s consistent interpretation of the word “willfully” to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers. (emphasis added). Upholding a jury instruction concerning willful filing of false income tax returns, the Supreme Court recently held that willfulness means “a voluntary, intentional vio lation of a known legal duty.” (emphasis added) United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 24, 50 L.Ed.2d 12, 16 (1976). Pomponio approved cases instructing the jury to the effect that intentional violation of a known legal duty must be embodied in the definition of willfulness and that negligence neither defines nor constitutes willfulness. See United States v. Pohlman, 522 F.2d 974, 976 (8 Cir. 1975) (en banc), cert. denied, 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); United States v. McCorkle, 511 F.2d 482, 484 (7 Cir. 1975) (en banc), cert. denied, 423 U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975); United States v. Greenlee, 517 F.2d 899, 904 (3 Cir. 1975), cert. denied, 423 U.S. 985, 96 S.Ct. 391, 46 L.Ed.2d 301 (1975); United States v. Hawk, 497 F.2d 365, 366-367 (9 Cir. 1974), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). In the instant case, the district court's conclusion regarding a willful overcharge that . in the framework of this case, an overcharge is wilful where it is deliberate, or where it is the natural and probable consequence of actions of the defendants which are voluntary and intentional or which are in reckless disregard of the applicable regulations, as opposed to being the" }, { "docid": "4479699", "title": "", "text": "183 (4th Cir.), cert. denied, 371 U.S. 894, 83 S.Ct. 193, 9 L.Ed.2d 126 (1962), supports this hold ing. Taylor involved a jury conviction for filing a false income tax return. The defendant admitted at trial that he had been audited by state tax agents. He then admitted that he had paid additional state income taxes after the audit. The latter admission was objected to. Defendant also objected to questions asked about filing returns reporting the social security and withholding taxes of his secretary. In holding the questions to be proper, the court said: “It is well established that evidence of collateral facts, circumstances and other acts of a defendant of a character kindred to that for which he is on trial, whether occurring prior or subsequent to the alleged offense, may be admitted with proper explanation to the jury as to the limits within which it may be included and for what purposes. (Citations omitted). The information elicited from defendant over objection might well bear upon his attitude toward the reporting and payment of taxes generally and thus may have been helpful to the jury in ascertaining his intent in preparing and filing his 1955 tax return.” 305 F.2d at 185-186. Accord, United States v. Magnus, 365 F.2d 1007, 1011 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967); Morrison v. United States, 270 F.2d 1 (4th Cir.), cert denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 150 (1959); Emmich v. United States, 298 F. 5 (6th Cir.), cert. denied, 266 U.S. 608, 45 S.Ct. 93, 69 L.Ed. 465 (1924). The case of United States v. Long, 257 F.2d 340 (3d Cir. 1958), held that the failure to file could not be used to help prove intentional misrepresentation on a later return. The Long court relied on Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). But Spies only rejected the “contention that a willful failure to file a return, together with a willful failure to pay the tax may, without more, constitute an attempt to defeat" }, { "docid": "4479700", "title": "", "text": "taxes generally and thus may have been helpful to the jury in ascertaining his intent in preparing and filing his 1955 tax return.” 305 F.2d at 185-186. Accord, United States v. Magnus, 365 F.2d 1007, 1011 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967); Morrison v. United States, 270 F.2d 1 (4th Cir.), cert denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 150 (1959); Emmich v. United States, 298 F. 5 (6th Cir.), cert. denied, 266 U.S. 608, 45 S.Ct. 93, 69 L.Ed. 465 (1924). The case of United States v. Long, 257 F.2d 340 (3d Cir. 1958), held that the failure to file could not be used to help prove intentional misrepresentation on a later return. The Long court relied on Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). But Spies only rejected the “contention that a willful failure to file a return, together with a willful failure to pay the tax may, without more, constitute an attempt to defeat or evade a tax * * 317 U.S. at 494-495, 63 S.Ct. at 366 (emphasis added). It did not say that a jury could not consider that failure. In fact, the Supreme Court said that the jury could consider the failures to file and to pay the tax along with other acts to find criminal tax evasion. 317 U.S. at 500, 63 S.Ct. 364. To the extent that Long is contra to our holding here, we prefer to follow Taylor and Magnus, supra. We think the same reasoning applies to the evidence of defendant’s past history of delinquent payments. Defendant also objected to testimony by his accountant, Katz, relating to a conversation with the defendant about the flier. He also objected to receipt into evidence of a letter written by Katz about the flier in which the accountant’s name prominently appeared. The evidence in question stated that Katz had not authorized the use of his name in the flier and that defendant knew of Katz’s objections. We think that both the testimony and the letter" }, { "docid": "2594424", "title": "", "text": "as an essential element of “willfulness” the existence of a tax associated motive —a failure to file “so that the government would not know the extent of liability” and “purpose to prevent the government from getting that which it lawfully requires” and would have advised the jury that in determining whether defendant’s failure to file was “willful” it should consider the testimony that he did not file the returns because he feared they would disclose his identity and he would be prosecuted by the New York authorities and whether such reason was based on actual belief and held in good faith. We perceive no error in the instruction as given by the trial court or in its rejection of the instructions tendered by the defendant. Defendant’s argument that the test of “willfulness” is the same under § 7203, as it is under § 7201, has been rejected by the Supreme Court in Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). There the Court held that a mere willful omission is sufficient to commit the misdemeanor proscribed by § 7203, while a willful commission is required to commit the felony proscribed by § 7201. A succinct discussion of the issue presented in the instant case is found in United States v. Schipani, 362 F.2d 825, 831 (2d Cir. 1966), cert. den. 385 U.S. 934, 87 S.Ct. 293, 17 L.Ed.2d 214, where the Court stated: “ ‘Willfully’ under § 7203 calls only for proof that the taxpayer failed to file his tax return intentionally and knowingly and not through accident or mistake or other innocent cause. ‘Willfully’ under § 7201 calls for proof that the taxpayer failed to file a tax return with the specific intention of evading or defeating payment of the tax. The context of the respective statutes makes this perfectly clear, and they have been so interpreted and construed by the Supreme Court. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Spies v. United States, [317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943)].” See" }, { "docid": "1221020", "title": "", "text": "United States, 225 F.2d 123, 127 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955), citing Tinkoff, supra. . That being the relevant element of § 7201. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Lawn v. United States, 355 U.S. 339, 361, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). And we have noted that a showing of some omitted items of income in the year in question suffices for this element of the crime. Kowalsky v. United States, 290 F.2d 161 (5th Cir.), cert. denied, 368 U.S. 875, 82 S.Ct. 120, 7 L.Ed.2d 76 (1961). . E. g., Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916 (1930). . Rutkin, supra, note 7. . Even disregarding the $40,000 Fender transaction, reclassified as ordinary income, and giving due allowance to Parr’s argument that if he did derive benefits he did so only as a member of Parr Cattle Company, a partnership with his nephew, Archer. The partnership returns for 1967 do not indicate positively whether they include the Atlee Parr Ranch operation or not, but to a degree contra-indicate, since they claim a substantial deduction —$3,000—for rent, presumably land rent. . United States v. Cole, supra, note 10. Cf. Marks v. United States, 391 F.2d 210, 211 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 109 (1968). See cases cited in notes 10 and 11. . The applicability of which is doubtful as to these sentences, anyhow." }, { "docid": "1515332", "title": "", "text": "that it fails to clearly allege an affirmative act. The pertinent parts of the indictment allege that defendant did wilfully and knowingly attempt to evade and defeat ... income tax due ... failing to make such income tax return ... and by failing to pay ... said income tax and by concealing and attempting to conceal ... his ... taxable income, in violation of Section 7201, Title 26, United States Code. Here, the indictment alleged an affirmative act (i.e. \"concealing and attempting to conceal”) as required by Spies. Defendant points to the ambiguity in the word \"conceal” and argues that the indictment was insufficient. While the indictment here was certainly sparse, in light of our disposition regarding the jury issue, we decline to set aside the indictment. We also note that courts generally have held similar indictments sufficient. United States v. Bardin, 224 F.2d 255 (7th Cir.1955); United States v. England, 229 F.Supp. 493 (E.D.Ill.1964), rev’d on other grounds, 347 F.2d 425 (7th Cir.1965); United States v. Minker, 197 F.Supp. 295 (E.D.Pa.1961), aff’d, 312 F.2d 632 (3d Cir.1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963); United States v. Carpenter, 175 F.Supp. 362 (N.D.Ga.1959). See Hayes v. United States, 407 F.2d 189 (5th Cir.), cert. dism'd, 395 U.S. 972, 89 S.Ct. 2133, 23 L.Ed.2d 777 (1969); Lott v. United States, 309 F.2d 115 (5th Cir.1962), cert. denied, 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 498 (1963)." }, { "docid": "12551504", "title": "", "text": "the Supreme Court expressly rejected the defendarit’s contention that the term willful requires proof of “evil intent” beyond a specific intent to violate the laws. Thus, the question of willfulness is one of fact for the jury to decide based upon all the facts and circumstances of the case. United States v. Lisowski, 504 F.2d 1268 (7th Cir. 1974). Moreover, proof of willfulness is most often made through circumstantial evidence. Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418 (1943). In the instant case, the evidence adduced at trial supports the jury’s finding that the appellant’s conduct was willful. The appellant and her husband received unreported income during 1970 and 1971 in the amount of $19,075 from ninety-nine checks negotiated under the name of “D. Kravitz.” The filing of federal income tax returns with knowledge on the part of the taxpayer that he should have reported more income than he did is sufficient to sustain a finding of willful intent to defeat and evade the tax. Sansone v. United States, 380 U.S. 343, 352-353, 85 S.Ct. 1004, 1010-11, 13 L.Ed.2d 882 (1965). The evidence also showed that the appellant endorsed most of the checks in the name of “D. Kravitz” in 1970 and 1971, even though her name had changed to Walsh in December 1969. The use of a fictitious name in an attempt to conceal income is a classic example of circumstantial proof of willfulness. Spies v. United States, supra 317 U.S. at 499, 63 S.Ct. at 368. Moreover, when the appellant was interviewed by an agent of the Internal Revenue Service, she falsely advised- him that she did not possess any knowledge pertaining to the “D. Kravitz” checks or endorsements. She also suggested to the agent that the checks might have represented payments to her son, David Kravitz. However, the evidence showed that her son had never been employed at Calumet Reports, Inc., and that she had endorsed a majority of the checks. The testimony of the handwriting expert showed that these statements regarding the “D. Kravitz” checks were false. These false" }, { "docid": "19360945", "title": "", "text": "involved in Counts 5, 8, and 9 were evidently signed not by the defendant but by his brother, Jim Fawaz. Fawaz claims that no rational jury, evaluating the evidence adduced by the Government in this case, could conclude that Fawaz knew that false statements were made on these returns. We construe this as an argument that the Government has failed to introduce sufficient evidence that Fawaz willfully committed tax evasion. Willfulness, of course, is an element of a § 7201 tax-evasion offense. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). It has been defined as “a voluntary, intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976) (per curiam). A conviction under § 7201 “may be sustained even when proof of willfullness is entirely circumstantial.” United States v. Grumka, 728 F.2d 794, 797 (6th Cir.1984) (per cu-riam) (emphasis omitted). We do not consider the fact that one of Fawaz’s agents, rather than Fawaz himself, signed the returns underlying certain tax-evasion counts to compel a holding that Fawaz did not willfully submit them. The law does not require the defendant’s own signature to sustain a conviction under § 7201: it merely requires “sufficient circumstances ... from which a reasonable jury could find that the defendant did authorize the filing of the return with his name subscribed to it.” United States v. Ponder, 444 F.2d 816, 822 (5th Cir.1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972). Such circumstances were found to be present in two decisions of this Court: United States v. Signer, 482 F.2d 394, 398 (6th Cir.), cert. denied, 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549 (1973) (evidence deemed sufficient where return was prepared by auditor but on the basis of a withholding of information by defendant); United States v. Maius, 378 F.2d 716, 718 (6th Cir.), cert. denied, 389 U.S. 905, 88 S.Ct. 216, 19 L.Ed.2d 219 (1967) (evidence of defendant’s being a party to a scheme to conceal income deemed" } ]

[ { "docid": "23239034", "title": "", "text": "(1st Cir.2004). A. Asylum and Withholding of Removal Settenda bore the burden of establishing his eligibility for asylum and withholding of removal. 8 C.F.R. § 1208.13(a). To be eligible for asylum, Settenda had to prove that he was a refugee under 8 U.S.C. § 1158(b)(1), meaning that he was “unable or unwilling to return to ... [Uganda] 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) (defining “refugee”). A petitioner who is unable to establish eligibility for asylum a fortiori fails to establish eligibility for withholding of deportation. Khem v. Ashcroft, 342 F.3d 51, 54 (1st Cir.2003); see also, Nelson v. INS, 232 F.3d 258, 261 n. 2 (1st Cir.2000) (“Because a failure to prove eligibility for asylum under INA § 208, 8 U.S.C. § 1158, necessarily means a failure to meet the requirements for withholding of deportation, we only discuss the former.”). An applicant must support his claim through credible testimony at all stages of the proceedings, and if the testimony is credible, it “may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.13(a). The IJ’s well documented finding that Settenda failed to support his application for asylum and withholding with credible testimony dooms his claim on appeal. “[T]he IJ must, if he or she chooses to reject [the petitioner’s] testimony as lacking credibility, offer a specific, cogent reason for [the IJ’s] disbelief.” Gailius v. INS, 147 F.3d 34, 47 (lst.Cir.1998) (internal quotation marks and citation omitted). Here, the IJ detailed the reasons for her conclusions, drawing on her observations of Settenda while testifying as well as analyzing the inconsistencies in and improbability of portions of the testimony. Similarly, the BIA identified the portions of the IJ’s findings — namely, the general lack of credibility of Settenda’s testimony and the inadequate documentary support — -which it relied on and affirmed. See Salazar v. Ashcroft 359 F.3d 45, 52 (1st Cir.2004) (citing Chen v. INS, 87 F.3d 5, 7-8 (1st Cir.1996), for the proposition that “if" } ]

[ { "docid": "4781845", "title": "", "text": "upon his return to Guatemala and, thus, counseled persuasively against withholding of removal. The petitioner administratively appealed this decision. The BIA affirmed without opinion. This timely petition for judicial review followed. On a petition for judicial review in an immigration case, we ordinarily focus on the opinion of the BIA. But when, as now, the BIA has not written its own rescript but, rather, has deferred to the IJ’s decision, we review the latter decision directly. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.2004). In conducting that tamisage, we review findings of fact (including credibility determinations) under the deferential “substantial evidence” standard. Id. Accordingly, we must leave those findings undisturbed as long as they 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). We will reverse only if the record is such as would “compel a reasonable factfinder to reach a contrary determination.” Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008). Abstract legal determinations are afforded de novo review. Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.2005). Even in that arena, however, we cede some deference to the agency’s interpretation of statutes and regulations that fall within its purview. See Chhay, 540 F.3d at 5; see also Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This brings us to the particular relief sought in the instant case: withholding of removal. The legal framework that governs applications for withholding of removal is well-settled. To be eligible for that relief, an alien must show either that (i) he has suffered past persecution on account of a statutorily protected ground, thus “creating a rebuttable presumption that he may suffer future persecution” if repatriated, or (ii) that it is “more likely than not that he will be persecuted on account of a protected ground upon his return to his native land.” Da Silva, 394 F.3d at 4. There are five statutorily protected grounds: race, religion, nationality, membership in a particular social group, and" }, { "docid": "22437006", "title": "", "text": "by the Indonesian government or any of its agents on account of his religious beliefs. Consistent with these findings, the IJ denied the cross-application for asylum, withholding of removal, and protection under CAT; ordered the petitioner removed; and designated Indonesia as the country of removal. The BIA upheld the IJ’s decision, concluding that the petitioner had failed to establish past persecution, a well-founded fear of future persecution, or a sufficient likelihood that he would be subjected to torture upon his return to Indonesia. This timely petition for judicial review followed. II. Discussion We start—and end'—with the denial of the petitioner’s application for asylum. In reviewing the BIA’s denial of an asylum application, we examine its findings of fact, including its credibility determinations, to ascertain whether those findings are supported by substantial evidence in the record. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). Under this highly deferential standard, we must accept the BIA’s findings so long as they are “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). Absent an error of law, we can overrule the BIA’s ensuing decision only if the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). The petitioner bears the burden of establishing that he qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To qualify as a refugee within the meaning of the Immigration and Nationality Act, an asylum seeker must show that he cannot return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Upon a satisfactory showing of past persecution, a rebuttable presumption arises that a petitioner’s fear of future persecution is well-founded. Makhoul, 387 F.3d at 79. The Immigration and Nationality Act provides no precise definition of “persecution.” The" }, { "docid": "20649418", "title": "", "text": "We have jurisdiction over Hayek’s claims for withholding of removal and CAT relief. See Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir.2005). In assessing these claims, we will “uphold the BIA’s determination if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.2004) (citation and internal quotation marks omitted). “Under the highly deferential substantial evidence standard, we must uphold the BIA’s findings unless any reasonable adjudicator would be compelled to conclude to the contrary.” Gi Kuan Tai v. Gonzales, 423 F.3d 1, 4 (1st Cir.2005) (citation and internal quotation marks omitted). An applicant for withholding of removal must “show either that (i) he has suffered past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion] (thus creating a rebuttable presumption that he may suffer future persecution), or (ii) it is more likely than not that he will be persecuted on account of a protected ground upon his return to his native land.” Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005) (citing 8 C.F.R. § 208.16(b)). This is a more rigorous standard than the standard for asylum. An applicant for CAT relief “must bear the burden to prove, by objective evidence, that it is more likely than not that he will be tortured if he is deported.” Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.2004) (emphasis omitted) (citing 8 C.F.R. § 208.16(c)(2)). Under the standards for both withholding of removal and CAT relief, “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.16(b),(c)(2). Hayek argues that some of the IJ’s stated reasons for doubting her story — her quick marriage to her fiancé and her failure to file a timely asylum application — are misplaced. However, Hayek’s testimony was general, meager, and often vague. She failed to testify in detail or corroborate her story. Under the circumstances of this case, and given her admitted contact with sources who could have corroborated her story" }, { "docid": "19899960", "title": "", "text": "540 F.3d 1, 5 (1st Cir.2008). The Attorney General does not challenge that determination, so we need not discuss the foundation on which it rests. Moreover, notwithstanding that the petitioner’s testimony was inconsistent in certain particulars, the IJ deemed him generally credible. Despite winning these battles, the petitioner lost the war. The IJ ruled that he had failed to demonstrate past persecution on account of a statutorily protected ground. In this regard, the IJ cited the petitioner’s lack of any declared political affiliation and the absence of any indication that something other than unmitigated greed lay behind the attempted extortion and the subsequent threats. The IJ rejected the application for withholding of removal on essentially the same basis. Furthermore, because there was no probative evidence that the Algerian government had either participated or ac quiesced in the menacing conduct, the IJ dismissed the CAT claim. The petitioner appealed to the BIA, without success. The BIA adopted the IJ’s findings, reasoning, and conclusions, adding a few comments about the burden of proof. This timely petition for judicial review followed. II. DISCUSSION We begin our analysis with the asylum question. We move next to the petitioner’s other claims for particularized forms of relief. Finally, we consider the alleged due process violation. A. The Asylum, Claim. To establish an entitlement to asylum, an alien must demonstrate that he is a refugee. 8 U.S.C. § 1158(b)(l)(B)(i); Lopez de Hincapié v. Gonzales, 494 F.3d 213, 217 (1st Cir.2007). To satisfy this requirement, the alien must show that he is unwilling or unable to return to his homeland for 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, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004). In turn, this entails a showing that the alien has a well-founded fear of future persecution based on one of the five statutorily enumerated grounds. Makhoul, 387 F.3d at 79. If the alien adduces probative evidence of past persecution" }, { "docid": "17242674", "title": "", "text": "factual ones, based largely on Stroni’s lack of credibility. Because these findings by the BIA/IJ are not subject to review by this court, we must dismiss Stroni’s petition for review of the denial of his application for asylum for lack of jurisdiction. B. To establish eligibility for withholding of removal, an individual has the burden of proving that, upon deportation, his “life or freedom would be threatened in that country because of the [individual’s] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir.2004). An individual may satisfy this burden by demonstrating either that (1) he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion (thus creating a rebuttable presumption that he will more likely than not suffer future persecution), or (2) it is more likely than not that he will be persecuted on account of a protected ground upon his return to his native land. Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005) (citing 8 C.F.R. § 208.16(b)); see also Ang v. Gonzales, 430 F.3d 50, 54 (1st Cir.2005) (explaining that an applicant for withholding of removal must show a “clear probability” of persecution upon removal from the United States). If credible, the testimony of an applicant for withholding of removal may be sufficient by itself to sustain his or her burden of proof as to past or future persecution. See 8 C.F.R. § 208.16(a) (2002) (providing that “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration”). On the other hand, if an applicant’s testimony is not credible, “it may be disregarded or sharply discounted, depending on the circumstances.” Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005). Importantly, minor or trivial inconsistencies in an applicant’s testimony are insufficient to support an adverse credibility finding. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003) (stating that “[i]nconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the" }, { "docid": "12105949", "title": "", "text": "under the familiar substantial evidence standard. See Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir.2007). That standard requires us to uphold the agency’s findings so long as the record does not “compel a reasonable fact-finder to reach a contrary determination.” Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008). Put another way, such findings will stand whenever they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Segran, 511 F.3d at 5 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Answers to abstract legal questions are reviewed de novo, with deference, however, to the agency’s reasonable interpretation of statutes and regulations within its ken. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.2007). To qualify for asylum, an alien must establish that he is a refugee within the meaning of 8 U.S.C. § 1101(a)(42). Satisfying this burden requires a showing of either past persecution or a well-founded fear of future persecution if repatriated, on account of one of five enumerated grounds, namely, race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); see also Makhoul v. Ashcroft, 387 F.3d 75, 80-81 (1st Cir.2004). An alien’s own testimony may be adequate to carry this burden. Bebri, 545 F.3d at 50. Nevertheless, the alien’s testimony need not be taken at face value; that testimony may be discounted or disregarded if the IJ reasonably deems it to be “speculative or unworthy of credence.” Id. Hence, “an adverse credibility determination can prove fatal” to an asylum claim. Id. (quoting Pan, 489 F.3d at 86). We must inquire, then, as to whether this is such a case. In denying asylum, the IJ concluded that the petitioner’s story was incredible. The petitioner disputes that characterization, alleging that the adverse credibility determination placed excessive weight on trivial inconsistencies. Upon close perscrutation, we find that allegation unfounded. Before beginning our explanation, we first must answer a threshold question. The petitioner applied for asylum on January 11, 2006. Because his application postdates the enactment of the REAL ID" }, { "docid": "22437007", "title": "", "text": "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). Absent an error of law, we can overrule the BIA’s ensuing decision only if the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). The petitioner bears the burden of establishing that he qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To qualify as a refugee within the meaning of the Immigration and Nationality Act, an asylum seeker must show that he cannot return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Upon a satisfactory showing of past persecution, a rebuttable presumption arises that a petitioner’s fear of future persecution is well-founded. Makhoul, 387 F.3d at 79. The Immigration and Nationality Act provides no precise definition of “persecution.” The case law, however, is more informative. We have held that past persecution requires that the totality of a petitioner’s experiences add up to more than mere discomfiture, unpleasantness, harassment, or unfair treatment. See, e.g., Bocova, 412 F.3d at 263; Nelson v. INS, 232 F.3d 258, 263 (1st Cir.2000). Moreover, persecution “always implies some connection to government action or inaction.” Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005). Thus, an applicant qualifies for asylum only when he suffers persecution that is the direct result of government action, government-supported action, or government’s unwillingness or inability to control private conduct. Id. It is transparently clear that in order to establish refugee status, an alien must support his claim of persecution through credible testimony. Credible testimony, standing alone, may be adequate to sustain the alien’s burden of proof. See Settenda v. Ashcroft, 377 F.3d 89, 92 (1st Cir.2004). But if the proffered testimony is not credible, it may be either disregarded or sharply discounted, depending on the circumstances. See, e.g., Laurent, 359 F.3d at 64; see also Aguilar-Solis" }, { "docid": "22913922", "title": "", "text": "“more likely than not” standard is harder for an alien to satisfy than the “reasonable possibility” standard for showing a well-founded fear of future persecution in asylum eases. See INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.2004). An alien’s credible testimony, standing alone, may sustain his burden of proving eligibility for withholding of removal. See Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). But evidence that the factfinder supportably characterizes as incredible may be either disregarded or discounted. See Laurent, 359 F.3d at 64. Accordingly, an adverse credibility determination can prove fatal to a claim for either asylum or withholding of removal. See, e.g., Stroni v. Gonzales, 454 F.3d 82, 89 (1st Cir.2006); Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005). This is such a case. In itself, the IJ’s adverse credibility determination suffices to defeat the withholding of removal claim. Faced with that reality, the petitioner exhorts us to set aside that determination. He argues that an adverse credibility determination cannot rest on trivia but, rather, must rest on discrepancies that involve matters of consequence. See Mewengkang v. Gonzales, 486 F.3d 737, 740 (1st Cir.2007); Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999). The petitioner’s premise is sound but the conclusion that he seeks to have us draw from it does not follow. We have outlined the anatomy of the IJ’s adverse credibility determination earlier in this opinion. The IJ did not deal in broad generalizations but relied on a specific and well-articulated litany of identified inconsistencies in the petitioner’s story. Those inconsistencies involve matters important to the petitioner’s claims for relief, such as the circumstances of his alleged detention, when he was last in China, and the date and manner of his arrival in the United States. The petitioner provided conflicting accounts of his journey to the United States; he failed to describe consistently the mode and manner of his cross-country trip from New York to Los Angeles; and he told different stories at different times about the origins of" }, { "docid": "22867482", "title": "", "text": "U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The substantial evidence standard is not petitioner-friendly; under it, the BIA’s fact-based determination of an alien’s entitlement to asylum must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). In other words, vacatur requires that the evidence “point[ ] unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). Rulings of law engender de novo review. Da Silva, 394 F.3d at 5. Even in that realm, however, courts must defer to the BIA’s reasonable interpretations of the statutes and regulations relating directly to immigration matters. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir.2004). To qualify for asylum, an applicant bears the burden of establishing that he is a “refugee” within the meaning of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1158(b)(1); see also Makhoul, 387 F.3d at 79. An applicant can carry this burden either by proving past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or by demonstrating a well-founded fear of future persecution on account of one of these five grounds. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b); see also Makhoul, 387 F.3d at 79. An alien must satisfy both a subjective and an objective test in order to prove a well-founded fear of future persecution. “That is to say, the asylum applicant’s fear must be both genuine and objectively reasonable.” Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir.1999). In this instance, the IJ found the petitioner’s testimony credible and the BIA accepted that finding. We therefore proceed on the assumption that the Albanian police twice arrested, beat, and threatened the petitioner and that this mistreatment was on account of his political opinion (i.e., his membership in the ADP-a party that was then out of favor). Accordingly, the question reduces to whether, given those facts, the BIA was compelled, as a matter of law, to" }, { "docid": "8841276", "title": "", "text": "opinion.” 8 U.S.C. §§ 1101(a)(42)(A), ' 1158(b)(1)(B). While asylum is discretionary, withholding of removal provides mandatory relief. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.2004). To be eligible for withholding of removal, an applicant must prove that it is more likely than not that he- will be subject to persecution on account of a protected ground should he be repatriated. Chhay, 540 F.3d at 6 (quoting Pulisir, 524 F.3d at 308); see also 8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not remove an alien to a country if the ... alien’s life or freedom would be threatened.... ”). Thus, for withholding of removal, Gurung must establish that his “life or freedom [will] be threatened in [Nepal] on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b); see also Sela, 520 F.3d at 46. An applicant may carry this burden either by demonstrating past persecution or a likelihood of future persecution. See, e.g., Melhem, 500 F.3d at 81; see also 8 C.F.R. § 1208.16(b)(l)(i) (“If the applicant is determined to have suffered past persecution in [Nepal] ... it shall be presumed that the applicant’s life or freedom would be threatened in the future_”). This is also referred to as a “clear probability” standard, which is more difficult to meet than the “well-founded fear” standard for asylum. See I.N.S. v. Stevie, 467 U.S. 407, 425-26, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Tay-Chan v. Holder, 699 F.3d 107, 111 (1st Cir.2012) (“Withholding of removal imposes a more stringent burden of proof on an alien than does a counterpart claim for asylum, because the alien must demonstrate a clear probability of persecution, rather than merely a well-founded fear of persecution.” (internal citations and quotation marks omitted)). In petitions for asylum examined under the lower standard of proof, “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(l)(B)(ii). Indeed, corroboration may be" }, { "docid": "17242675", "title": "", "text": "394 F.3d 1, 4 (1st Cir.2005) (citing 8 C.F.R. § 208.16(b)); see also Ang v. Gonzales, 430 F.3d 50, 54 (1st Cir.2005) (explaining that an applicant for withholding of removal must show a “clear probability” of persecution upon removal from the United States). If credible, the testimony of an applicant for withholding of removal may be sufficient by itself to sustain his or her burden of proof as to past or future persecution. See 8 C.F.R. § 208.16(a) (2002) (providing that “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration”). On the other hand, if an applicant’s testimony is not credible, “it may be disregarded or sharply discounted, depending on the circumstances.” Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005). Importantly, minor or trivial inconsistencies in an applicant’s testimony are insufficient to support an adverse credibility finding. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003) (stating that “[i]nconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding ... especially [] when the inconsistencies do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim” (internal citations and quotation marks omitted)). Instead, an adverse credibility finding must be based upon “discrepancies that involve[ ] the heart of the [withholding] claim.” Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999). Here, the IJ found that Stroni was not a credible witness and so denied Stroni’s request for withholding of removal. The BIA summarily adopted and affirmed the IJ’s decision, including the IJ’s finding as to Stroni’s lack of credibility. Like the asylum officer who first denied Stroni’s application for asylum, the IJ based his credibility finding on the many inconsistencies in Stroni’s testimony. While some of the inconsistencies noted by the IJ are trivial, others go to the heart of Stroni’s withholding claim. For example, the IJ noted that Stroni did not claim that he needed or sought medical attention even though he claimed to have been" }, { "docid": "12105950", "title": "", "text": "namely, race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); see also Makhoul v. Ashcroft, 387 F.3d 75, 80-81 (1st Cir.2004). An alien’s own testimony may be adequate to carry this burden. Bebri, 545 F.3d at 50. Nevertheless, the alien’s testimony need not be taken at face value; that testimony may be discounted or disregarded if the IJ reasonably deems it to be “speculative or unworthy of credence.” Id. Hence, “an adverse credibility determination can prove fatal” to an asylum claim. Id. (quoting Pan, 489 F.3d at 86). We must inquire, then, as to whether this is such a case. In denying asylum, the IJ concluded that the petitioner’s story was incredible. The petitioner disputes that characterization, alleging that the adverse credibility determination placed excessive weight on trivial inconsistencies. Upon close perscrutation, we find that allegation unfounded. Before beginning our explanation, we first must answer a threshold question. The petitioner applied for asylum on January 11, 2006. Because his application postdates the enactment of the REAL ID Act, Pub.L. 109-13, 119 Stat. 302 (2005), the credibility definition at issue here is subject to a provision of that Act, codified at 8 U.S.C. § 1158(b)(l)(B)(iii), rather than to the preexisting “heart of the matter” rule. The earlier rule required that an adverse credibility finding be based on inconsistencies that “pertain to facts central to the merits of the alien’s claims.” Bebri, 545 F.3d at 50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006)). The new statute disavows that test; it provides that a factfinder may base a credibility determination on inconsistencies, inaccuracies, or falsehoods “without regard to whether [any such inconsistency, inaccuracy, or falsehood] goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). We therefore proceed to evaluate the IJ’s adverse credibility determination under that standard and in light of the totality of the circumstances. See, e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008); Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir.2007); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir.2006)." }, { "docid": "22913920", "title": "", "text": "U.S.C. § 1158(a)(3). This is not the end of the matter because there are no similar temporal or jurisdictional barriers to judicial review of the denial of the petitioner’s other claims for relief. We turn, then, to his withholding of removal claim. The IJ did not deal specifically with this claim. Withal, the asylum and withholding of removal analyses are sufficiently analogous that we may treat the IJ’s findings of raw fact on the asylum claim as transferable in large part to the withholding of removal claim. Cf. Wine & Spirits Retailers, Inc. v. Rhode Island, 481 F.3d 1, 7 (1st Cir.2007) (acknowledging that “a trial court’s findings of fact, made in connection with one legal theory, may often be treated as fungible in connection with another”). We review findings of fact in immigration proceedings only to determine whether those findings are supported by substantial evidence in the record. Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005). In other words, we accept an IJ’s findings of fact, including credibility determinations, as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We will embrace a finding unless the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). Rulings of law engender de novo review, but with some deference to the agency’s reasonable interpretation of statutes and regulations that fall within its purview. See Bocova, 412 F.3d at 262; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). To qualify for withholding of removal, an alien must show that, more like ly than not, he faces persecution on account of one of five protected grounds, namely, race, religion, nationality, membership in a particular social group, or political opinion, should he return to his homeland. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 208.16(b)(2); see also Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). This" }, { "docid": "19944064", "title": "", "text": "contrary. Id. at 87. II. The INA bars any court from exercising jurisdiction over a determination by the Attorney General regarding the satisfaction of the timeliness requirement for asylum applications. 8 U.S.C. § 1158(a)(3); see also Stroni, 454 F.3d at 87; Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). The BIA has determined that appellant’s application for asylum was not timely; we have no jurisdiction to review that decision. We review only appellant’s withholding of removal and CAT claims. To be eligible for withholding of removal, an alien must show that his or her “life or freedom would be threatened in [his or her home country] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In order to carry his or her burden of persuasion, the alien must show either past persecution (thereby giving rise to a rebutta-ble presumption of future persecution) or that it is more likely than not that he will suffer persecution on account of a protected ground if he returns to his home country. See 8 C.F.R. § 208.16(b); see also Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). The BIA’s finding that appellant failed to demonstrate past persecution, giving rise to a presumption of likely future persecution upon his return to Haiti, easily survives our review for substantial evidence. Our review of appellant’s testimony before the IJ supports the BIA’s finding. Even if credible, appellant’s testimony does not describe persecution, as we have defined that term. See Sharari, 407 F.3d at 474 (“Persecution does not include ‘all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.’”) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993)). Appellant appears to have suffered some unpleasant treatment, but he has not shown that he has been the target of persecution. He had no specific knowledge of how the fire was started or by whom, nor was there any evidence (other than its perhaps unfortunate timing) that it was related to his political activities. He described a series of threats and" }, { "docid": "22255925", "title": "", "text": "the IJ are actually present and provide cogent reasons to conclude his testimony was not credible. As the IJ noted, he did not provide a “convincing explanation for the discrepancies” in the record regarding his clan membership. The evidence was not so strong that any reasonable factfinder would be compelled to conclude he belonged to the Madhiban clan and had a well-founded fear of persecution. We see no reason to disturb the IJ’s adverse credibility determination. Guled next argues the IJ erroneously concluded he was ineligible for asylum, withholding of removal, and relief under the Convention Against Torture. We disagree. The IJ found he did not qualify for asylum because he could not credibly demonstrate as to being a refugee within the meaning of Section 101(a)(42)(A) of the INA. Since substantial evidence on the record as a whole supports the IJ’s findings he could not prove being a refugee and could not prove a well-founded fear of persecution, we cannot say the IJ’s decision to deny his application for asylum was manifestly contrary to law or an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D). D. Withholding of Removal An application for asylum automatically includes a request for withholding of removal. 8 C.F.R. § 1208.3(b); see INS v. Stevic, 467 U.S. 407, 420 n. 13, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An alien may not be removed if the alien shows there is a clear probability his “life or freedom would be threatened in [the alien’s] country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The standard for withholding of removal is a clear probability of persecution, which is more rigorous than the well-founded fear standard for asylum. Rife v. Ashcroft, 374 F.3d 606, 613 (8th Cir.2004); Wondmneh v. Ashcroft, 361 F.3d 1096, 1099 (8th Cir.2004). Therefore, an alien who cannot meet the standard for asylum cannot meet the standard for establishing withholding of removal. Ngure, 367 F.3d at 992. Accordingly, having found Guled failed to meet the well-founded fear of persecution standard for asylum, we conclude" }, { "docid": "3939184", "title": "", "text": "to Indonesia, and that Meweng-kang’s real motivation was economic gain. Mewengkang appealed to the BIA, which affirmed by per curiam order, stating that the inconsistencies identified by the IJ provided a reasonable basis for rejecting Mewengkang’s testimony. The BIA order further held that Mewengkang had not established a clear probability that he would be persecuted upon his return to Indonesia. Therefore, the BIA ordered Mewengkang removed, but granted him sixty days to depart voluntarily. II. Discussion A. Standard of Review The attorney general may not remove an alien whose life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of proving that it is more likely than not that he will be persecuted. Sharari v. Gonzáles, 407 F.3d 467, 474 (1st Cir.2005). Where the BIA has adopted the IJ’s credibility determination, as here, we review the determination of the IJ. Chen v. Gonzáles, 418 F.3d 110, 113-14 (1st Cir.2005). The BIA has previously stated that an alien may be found incredible based on discrepancies in testimony where “(1) the discrepancies and omissions described by the Immigration Judge are actually present; (2) these discrepancies and omissions provide specific and cogent reasons to conclude that the respondent provided incredible testimony; and (3) the respondent has not provided a convincing explanation for the discrepancies and omissions.” Matter of A-S-, 21 I. & N. Dec. 1106, 1109 (BIA 1998); see also Hoxha v. Gonzáles, 446 F.3d 210, 216-17 (1st Cir.2006) (applying test from Matter of AS-). However, “an adverse credibility determination cannot rest on trivia but must be based on discrepancies that ‘involved the heart of the asylum claim.’ ” Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999) (citation omitted). We then review an IJ’s overall findings of fact to see if they are supported by “substantial evidence.” Sharari, 407 F.3d at 473. “We afford de novo review to the BIA’s legal conclusions, but cede some deference to its interpretations of the [Immigration and Nationality Act].” Da Silva v. Ashcroft, 394 F.3d 1," }, { "docid": "8140256", "title": "", "text": "with a précis of the standard of review. Absent an error of law, we must uphold the BIA’s denial of an asylum petition as long as that denial is supported by substantial evidence in the record as a whole. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005). That standard requires us to defer to the BIA’s findings of fact “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This is not a petitioner-friendly standard of review; a reversal is appropriate only when the record evidence “points unerringly” to a conclusion different from that reached by the BIA. Laurent, 359 F.3d at 64. Although we afford de novo review to the BIA’s legal determinations, its construction of the Immigration and Nationality Act (INA) and the regulations thereunder is entitled to a degreé of deference. See Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.2005); see also Chevron U.S.A, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). With this prelude, we turn to the petitioner’s assignments of error. In order to qualify for asylum, an alien must demonstrate that she is a “refugee” within the meaning of the INA. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To carry this burden, the alien must prove that she is unable or unwilling to repatriate “because 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 Orelien, 467 F.3d at 70. An alien may make the requisite showing through one of two avenues. The first requires her to demonstrate past persecution on account of one of the five statutorily protected grounds, thereby triggering a rebuttable presumption of future persecution. Makhoul, 387 F.3d at 79. Once that presumption emerges, the burden shifts to the government to prove that she can return safely to her homeland. See Orelien, 467 F.3d at 71; see also 8 C.F.R. § 208.13(b)(l)(i)(A)-(B) (setting forth what" }, { "docid": "22136462", "title": "", "text": "use the name used in Mwembie’s original asylum application of September 14, 2001, which Matalatala helped prepare. . 8 C.F.R. §§ 208.13(a) (asylum); 208.16(b) (withholding of removal); 208.16(c)(2)(CAT). . To be eligible for asylum, an alien must be \"unable or unwilling to return to ... [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.\" 8 U.S.C. § 1101(a)(42)(A). To demonstrate a well-founded fear of persecution, an alien must show \"a subjective fear of persecution, and that fear must be objectively reasonable.\" Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.2001). A claim for withholding of removal, meanwhile, does not require proof of subjective fear, Zhang, 432 F.3d at 344, but it does require that the alien prove a \"clear probability” of future persecution, INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984): Mwembie must show it is more likely than not that \"[her] life or freedom would be threatened ... because of [her] race, religion, nationality, membership in a particular social group, or political opinion.\" 8 U.S.C. § 1231(b)(3)(A). . See, e.g., Lopez De Jesus v. INS, 312 F.3d 155, 161 (5th Cir.2002) (\"[A] credibility determination may not be overturned unless the record compels it.\"); see also Kurji v. Gonzales, 140 Fed.Appx. 549, 550 (5th Cir.2005) (per curiam) (\"[T]he record does not compel a credibility determination contrary to that of the IJ.\"); In re A-S-, 21 I & N Dec. 1106 (BIA 1998) (explaining that the BIA generally defers to and adopts the IJ’s credibility determination if supported by the record). . Although the Department of Justice points out that it \"strains credulity” that a judge would risk his career for Mwembie, here the risk of saving the innocent daughter of a friend or neighbor from daily rape and possible death may have been deemed worth taking. . Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir.1994) (finding that police interrogated petitioner because they were seeking information relating to a terrorist incident, not because he was Kurdish" }, { "docid": "22913921", "title": "", "text": "are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We will embrace a finding unless the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). Rulings of law engender de novo review, but with some deference to the agency’s reasonable interpretation of statutes and regulations that fall within its purview. See Bocova, 412 F.3d at 262; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). To qualify for withholding of removal, an alien must show that, more like ly than not, he faces persecution on account of one of five protected grounds, namely, race, religion, nationality, membership in a particular social group, or political opinion, should he return to his homeland. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 208.16(b)(2); see also Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). This “more likely than not” standard is harder for an alien to satisfy than the “reasonable possibility” standard for showing a well-founded fear of future persecution in asylum eases. See INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.2004). An alien’s credible testimony, standing alone, may sustain his burden of proving eligibility for withholding of removal. See Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). But evidence that the factfinder supportably characterizes as incredible may be either disregarded or discounted. See Laurent, 359 F.3d at 64. Accordingly, an adverse credibility determination can prove fatal to a claim for either asylum or withholding of removal. See, e.g., Stroni v. Gonzales, 454 F.3d 82, 89 (1st Cir.2006); Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005). This is such a case. In itself, the IJ’s adverse credibility determination suffices to defeat the withholding of removal claim. Faced with that reality, the petitioner exhorts us to set aside that determination. He argues that an" }, { "docid": "23114987", "title": "", "text": "withholding of removal places a more stringent burden of proof on an alien than does a counterpart claim for asylum. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.2004); see also Da Silva v. Ashcroft, 394 F.3d 1, 4 n. 5 (1st Cir.2005) (“The threshold of eligibility for withholding of removal is higher than the threshold of eligibility for asylum.”) (citing cases). Because of that disparity, the BIA’s rejection of the petitioner’s asylum claim, if sustainable, sounds the death knell for his counterpart claim for withholding of removal. Hence, we begin — and end — with the asylum claim. In immigration cases, a highly deferential standard of review obtains with respect to fact-driven issues. Putting aside errors of law — and none appears here — an inquiring court must uphold the BIA’s resolution of such issues so long as its decision is supported by substantial evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Da Silva, 394 F.3d at 4-5. This means that the BIA’s determination must stand unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004) (explaining that reversal requires that the evidence of record “point[] unerringly in the opposite direction”). In order to establish an entitlement to asylum, the petitioner must show that he is a refugee within the meaning of the immigration laws. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). A refugee is a person who cannot or will not return to 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)(A). To be cognizable, persecution' — -whether past persecution (which creates a presumption of a well-founded fear of future persecution) or feared future persecution — must be on account of one of the five statutory grounds. Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir.2004);. Makhoul, 387 F.3d at 79. Here, the IJ (and, by" } ]

[ { "docid": "18032211", "title": "", "text": "provide for minor variations in the specific gravity of the extruded tapes resulting from irregularities or differences in the method of manufacture, but not to include PTFE tapes with a specific gravity of .9 or lower. See, Arvin Industries, Inc. v. Berns Air King Corp., supra. B. Equivalents Under the doctrine of equivalents, a claim that is not literally infringed is nevertheless infringed by a device that performs substantially the same function in substantially the same way to obtain substantially the same result. Graver Tank & Mfg. Co. v. Linde Air Products, Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Kreis v. American Hospital Supply Corp., supra. The infringing device must be substantially identical to the one alleged to be infringed in: (1) the result obtained; (2) the means of attaining that result; and (3) the manner in which the different parts operate and cooperate to produce that result. Farmhand, Inc. v. Craven, 455 F.2d 609 (8th Cir. 1972). Pipe joints made with .9 density UPTFE tape are identical in every respect to those made with 1.4 density UPTFE or any other density within the range of the patent in suit. The material of the tape, pure UPTFE, is the same. The tape is applied to the threads in the same fashion. While there is a difference in the initial density of the tape, when the joint is completed the portions of the two tapes which form the seal are compressed to a maximum density of approximately 2.2 and are therefore completely indistinguishable. Defendant cites several differences between the low density expanded tape and the higher density extruded tape which it claims make the two tapes not equivalent in performance. The Court finds those cited differences to be unsubstantial and immaterial. Dr. Gore testified that, for all but a few special applications, an adequate seal can be obtained if a sufficient volume of PTFE material is present to fill at least one complete thread circumference; that is, that a given number of wraps of the lower density tape will seal as effectively as the same number of" } ]

[ { "docid": "7798559", "title": "", "text": "length concerning the elements and patent claims of both devices, a highly qualified expert witness for appellee stated that it was his opinion each and every one of the mechanical elements outlined in Claims 1 and 2 of the Cook-Bakan 2 finds a response in the structure of the accused Calmar SS-40 sprayer unit. The Supreme Court held in Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147 (1929) that generally one device is an infringement of another if it performs substantially the same function in substantially the same way to obtain the same result even though they differ in name, form, or shape. See also Graver Tank Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Priebe & Sons Co. v. Hunt, 188 F.2d 880, 883-884 (8th Cir. 1951), petition for cert. dismissed 342 U.S. 801, 72 S.Ct. 92, 96 L.Ed. 607 (1951). The accused device falls within this definition prohibiting substantial equivalence since its basic mechanical elements, mode of operation, and results obtained find an identical counterpart described in the pertinent claims of the Cook-Bakan 2, the two devices varying only with respect to the inconsequential shape of the sealing surfaces. The finding of infringement in the instant case based on the doctrine of substantial equivalence is a factual determination. Graver Tank Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. supra at 609, 70 S.Ct. 854; Maytag Co. v. Murray Corp. of America, 318 F.2d 79, 83 (6th Cir. 1963). Substantial evidence supports the trial court’s finding of infringement. The judgment of the District Court is in all things affirmed. . Claim 1. “In a closure assembly for an open-top container having a perforated cap over said open top thereof mounting a spray unit including a barrel provided with a tubular extension passing coaxially upwardly through the perforation in said cap, a plunger reciprocally carried by the barrel and normally extending therebeyond and a spray head on the upper end of the plunger above said extension, the combination with said spray" }, { "docid": "37756", "title": "", "text": "exception, it should not be used to defeat the legitimate process of “inventing around” an adversely held patent. Id. Under the doctrine of equivalents, infringement may be found if the Exac devices perform substantially the same function as the Micro Motion inventions, in substantially the same way, to obtain substantially the same result. Graver Tank, 339 U.S. at 608, 70 S.Ct. at 856 (citing Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929)). If any one of these three elements of equivalence are not present in the accused device, then there is no infringement of that claim. Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422, 1425-27 (Fed.Cir.1989). Micro Motion has the burden to prove infringement under this doctrine by a preponderance of the evidence. SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1123 (Fed.Cir.1985). Determination of infringement under this doctrine is a two-step process. First, the literal language of the claims must be construed to determine their meaning and scope. Any definitional questions are to be resolved by reference to the patent specifications, its prosecution history, the prior art, and expert testimony. PX 277, If 4; RT-WHO 1573-75. Second, the construed claims must be compared with the accused device, to determine whether the accused device includes each element of the claims or its substantial equivalent. Snellman v. Ricoh Co., 862 F.2d 283, 286 (Fed.Cir.1988). There can be no infringement unless each and every claimed element of each asserted claim or its substantial equivalent is present in the accused device. Lemelson v. United States, 752 F.2d 1538, 1550-51 (Fed.Cir.1985). Where the construed claims are different from the accused device, only insubstantial changes between the construed claims and the accused device constitute infringement under this doctrine. Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934-35 (Fed.Cir.1987) (en banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). An equivalent of a claimed invention need not be described in the patent to constitute an infringement. D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1574 (Fed.Cir.1985). The trial court" }, { "docid": "10304718", "title": "", "text": "pull by sliding vertically or by rotating the collar on the cylindrical member. The vertical members of Machine No. 2 are square, rather than cylindrical, thus rotation of the collar on the member is precluded. However, Machine No. 2 employs a pivot pin where the pulley attaches to the collar, thus the pulley can be adjusted horizontally as well as vertically, just as accomplished in the Chisum device. Machine No. 2 possesses an equivalent element e means which performs the functions stated in element e. If properly construed claims read on the infringing product, there is literal infringement. Atlas Powder Co. v. E.I. duPont DeMours, 750 F.2d 1569, 1579, 224 U.S.P.Q. 409 (Fed.Cir.1984), citing Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 U.S.P.Q. 1137, 1140 (Fed.Cir.1983). Where the accused devise includes a means that is equivalent and that performs the function of that means, the additional elements of the claim being found, the claim would read directly on the accused device and constitute literal infringement. See DMI, Inc. v. Deere & Co., 755 F.2d 1570, 225 U.S.P.Q. 236 (Fed. Cir.1985). The claims of the reissue patent read directly on Machine No. 2. Machine No. 2 literally infringes the Chisum reissue patent. Machine No. 3 infringes the Chisum reissue patent under the doctrine of equivalents. The essence of the doctrine of equivalents is that one may not practice a fraud on a patent. A patentee may invoke this doctrine to proceed against the producer of the device if it performs substantially the same function in substantially the same way to obtain the same result. The theory on which it is founded is that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape. Graver Tank & Mfg. Co. v. Linde Air Products, 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950), citing Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 citing Union Paper-Bag Machine Co. v." }, { "docid": "21151132", "title": "", "text": "F.2d 855, 857 (Fed.Cir.1988), cert. denied, 490 U.S. 1068, 109 S.Ct. 2069, 104 L.Ed.2d 634 (1989). Whether a patent is alleged to be infringed literally or by application of the doctrine of equivalents, analysis of infringement entails two inquiries: “determination of the scope of the claims, as a matter of law” and “the factual finding of whether properly construed claims encompass the accused structure.” Texas Instruments, Inc. v. United States Int’l Trade Comm’n, 805 F.2d 1558, 1562 (Fed. Cir.1986). The first step — interpreting the scope of the claims — is a question of law. The second step — determining whether a patent claim reads on the accused devices— is a question of fact to be decided under the three-part test set forth in Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). In that case, the Supreme Court held that “[a] finding of equivalence is a determination of fact” to be made if the accused device “ ‘ “performs substantially the same function in substantially the same way to obtain the same result” ’ ” as the patented device. Graver Tank, 339 U.S. at 608-09, 70 S.Ct. at 856- 57 (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929) (quoting Machine Co. v. Murphy, 97 U.S. (7 Otto) 120, 125, 24 L.Ed. 935 (1877))). For purposes of this case, three judicial doctrines regarding the scope of the doctrine of equivalents have particular importance. First, courts have held that the breadth of equivalents that will be found to infringe a patent depends on the degree to which the patent represents an advance over prior art in the field. A “broad breakthrough invention” or “pioneer invention” — which the Supreme Court has described as one that performs “a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art” — merits a broad scope of equivalents. Westinghouse v. Boyden Power-Brake Co., 170 U.S. 537, 561-62," }, { "docid": "5391654", "title": "", "text": "there can be no literal infringement. At trial, Hughes conceded the absence of literal infringement and predicated its case for infringement on the doctrine of equivalents. (B) Doctrine of Equivalents and Doctrine of File Wrapper Estoppel The doctrine of equivalents comes into play only when actual literal infringement is not present. Under the doctrine of equivalents, an accused product that does not literally infringe a structural claim may yet be found an infringement “if it performs substantially the same function in substantially the same way to obtain the same result” as the claimed product or process. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (quoting from Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147). The doctrine is judicially devised to do equity. “Courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing,” id. 339 U.S. at 607, 70 S.Ct. at 856, and again, “The essence of the doctrine is that one may not practice a fraud on a patent,” id. at 608, 70 S.Ct. at 856. As summarized by the Supreme Court: Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Id. at 609, 70 S.Ct. at 856-57. Hughes, having the burden of proving infringement by a preponderance of the evidence, Roberts Dairy Co. v. United States, 530 F.2d 1342, 1357, 182 USPQ 218, 227 (Trial Div., Ct.Cl.1974), aff’d 198 USPQ 383 (Ct.Cl.1976), characterizes as “inconsequential” the differences in operation of the claimed invention and the accused S/E spacecraft. It asserts that the Williams satellite and" }, { "docid": "8371437", "title": "", "text": "Hartman’s argument, for we find Figure 25 not to be “new matter.” Furthermore, we know of no further reason, and Hartman has not provided us with any, to believe that the later application should not be considered a continuation-in-part of the earlier application. Accordingly, we think prior art should be measured as of the 1954 filing date, at which time the Lemelson invention was clearly patenta-bly. We find the Lemelson patent valid. Do the Hartman Apparatuses Infringe? In support of its claim that the Hartman stacker infringes the Lemelson patent Triax maintains that the design and operation of the Hartman stacker is so similar to the design and operation of its own stacker that the two machines are, in effect, equivalent, and therefore the Hartman machine infringes the Lemelson patent under the well established “doctrine of equivalents.” Determining whether, vel non, the doctrine of equivalents applies to a given set of facts has never been, for obvious reasons, an easy matter for court resolution. The broadly stated test, enunciated in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147 (1929), is whether the challenged device “performs substantially the same function in substantially the same way to obtain the same result” as the challenging device. In applying this test the court is guided by a corollary rule, soundly developed from the sensible proposition that some inventions by their very nature deserve slightly more extensive legal protection than others— the rule that, if a patent is a pioneering patent the patentee is allowed a wide range of equivalents, but if the patent is a narrow patent or the art is crowded the patentee is only allowed a correspondingly narrower range. See Parmelee Pharmaceutical Company v. Zink, 285 F.2d 465 (8 Cir. 1961). Furthermore, a factual finding by the lower court that a particular device is or is not equivalent to another device is not to be disturbed by appellate judges unless that finding is clearly" }, { "docid": "23193412", "title": "", "text": "be found if an accused device performs substantially the same function in substantially the same way to achieve substantially the same result. E.g., Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950); Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934, 4 USPQ2d 1737, 1739 (Fed.Cir.1987) (in banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). This equitable doctrine evolved from a balancing of competing policies, each of which supports the Constitutional purpose of promoting the “useful arts.” U.S. Const, art. I, § 8, cl. 8. On the one hand, claims must be “particular” and “distinct,” as required by 35 U.S.C. § 112, so that the public has fair notice of what the patentee and the Patent and Trademark Office have agreed constitute the metes and bounds of the claimed invention. Notice permits other parties to avoid actions which infringe the patent and to design around the patent. State Indus. v. A.O. Smith Corp., 751 F.2d 1226, 1236, 224 USPQ 418, 424 (Fed.Cir.1985). On the other hand, the patentee should not be deprived of the benefits of his patent by competitors who appropriate the essence of an invention while barely avoiding the literal language of the claims. See Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 856-57, 9 USPQ2d 1289, 1291 (Fed.Cir.1988), cert. denied, 490 U.S. 1068, 109 S.Ct. 2069, 104 L.Ed.2d 634 (1989) (citing the additional opinions in Pennwalt as exhaustively discussing these competing policies). Accordingly, the doctrine of equivalents emerged. Although designing or inventing around patents to make new inventions is encouraged, piracy is not. Thus, where an infringer, instead of inventing around a patent by making a substantial change, merely makes an insubstantial change, essentially misappropriating or even “stealing” the patented invention, infringement may lie under the doctrine of equivalents. See Graver Tank, 339 U.S. at 609-10, 70 S.Ct. at 856-57, 85 USPQ at 331; Lockheed Aircraft Corp. v. United States, 553 F.2d 69, 82, 213 Ct.Cl. 395, 193 USPQ 449, 461 (1977). Application" }, { "docid": "6371506", "title": "", "text": "from asserting equivalents as to the “fiberfill batting material” limitation. B A finding of infringement under the doctrine of equivalents requires a showing that the difference between the claimed invention and the accused product or method was insubstantial or that the accused product or method performs the substantially same function in substantially the same way with substantially the same result as each claim limitation of the patented product or method. AquaTex, 419 F.3d at 1382; see also Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (“[A] patentee may invoke this doctrine [of equivalents] to proceed against the producer of a device ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ ” (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147 (1929))). We have held that the function, way, result inquiry focuses on “an examination of the claim and the explanation of it found in the written description of the patent.” Vehicular Techs. Corp. v. Titan Wheel Int'l, Inc., 141 F.3d 1084, 1090 (Fed.Cir.1998); see also Warner-Jenkinson, 520 U.S. at 40, 117 S.Ct. 1040 (“An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element.”). In addition to finding the doctrine of equivalents barred by prosecution history estoppel, the district court concluded that Vizorb® was not equivalent to the “fiberfill batting material” limitation because AquaTex failed to show that “Defendant’s filler layer includes a hydrophobic material, like the fiberfill used in Plaintiffs product, to create air pockets to promote evaporation.” AquaTex, 2006 WL 1006631, at *6 (emphasis added). It appears that the district court concluded that the function of the “fiberfill batting material” was to promote evaporation and that Vizorb® did not achieve this function in the same way (i.e., by the use of hydrophobic material and by the creation of air pockets) as this limitation." }, { "docid": "11473184", "title": "", "text": "its patent in its complaint and in its motion for a preliminary injunction. Smithco, in defending the motion for preliminary injunction, injected the issue of “doctrine of equivalents” infringement. Thus, giving Circle R the benefit of the doubt, the court must also consider whether Circle R could show a reasonable likelihood of success on the merits of a “doetrine-of-equivalents” infringement claim. ii. “Doctrine of equivalents.” The court observes that Circle R also has but slight likelihood of success on a “doctrine of equivalents” infringement claim. An accused product that does not literally infringe a claim may nonetheless infringe the patent under the “doctrine of equivalents” if “ ‘it performs substantially the same function in substantially the same way to obtain the same results.’ ” Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579 (Fed.Cir.) (quoting Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950)), cert. denied, — U.S. -, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995); Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1196 (Fed. Cir.1994) (product may infringe if it contains every limitation, either literally, or by substantial equivalence); Genentech, Inc. v. Wellcome Found., Ltd., 29 F.3d 1555, 1567 (Fed.Cir.1994) (substantial equivalence under Graver Tank requires a “showing of substantial identity of function, way, and result,” and whether the “way” or “result” prong is met “is highly dependent on how broadly one defines the ‘function’ ” element); Atlanta Motoring Accessories, Inc. v. Saratoga Technologies, Inc., 33 F.3d 1362, 1366 (Fed.Cir. 1994); Dolly, Inc. v. Spalding & Evenflo Cos., Inc., 16 F.3d 394, 397 (Fed.Cir.1994). As the parties pointed out in the preliminary injunction hearing, however, the Federal Circuit Court of Appeals has recently reaffirmed that the funetion-way-result test is not “the test” of equivalence in “doctrine of equivalence” cases, instead citing Graver Tank as also stating the question of equivalence as whether there are only “insubstantial differences between the claimed and accused products or processes.” Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1521-22 (Fed.Cir.1995) (in banc), cert. granted," }, { "docid": "3243095", "title": "", "text": "infringement is whether the accused device does substantially the same work in substantially the same way to accomplish the same result by the same or equivalent means and infringement is not to be avoided by a substitution of equivalence whether the equivalent is verbally within the claim or not, nor may it be avoided by a mere transposition or reversal of parts. Graver Tank Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 856, 94 L.Ed. 1097; Willis v. Town, 8 Cir., 182 F.2d 892; Dean Rubber Mfg. Co. v. Killian, supra; Montgomery Ward & Co. v. Clair, 8 Cir., 123 F.2d 878; Vallen v. Volland, 8 Cir., 122 F.2d 175. In Graver Tank Mfg. Co. v. Linde Air Products Co., supra, in speaking of the doctrine of equivalence, the Supreme Court said: “The essence of the doctrine is that one may not practice a fraud on a patent. Originating almost a century ago in the case of Winans v. Denmead, 15 How. 330, 14 L.Ed. 717, .it-has been consistently applied-by this Court and the lower federal courts, and continues today ready and available for utilization when the proper circumstances for its application arise. ‘To temper unsparing logic' and prevent an infringer from stealing the benefit of the invention’ a patentee may invoke this doctrine to proceed against the producer of a device ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147, The theory on which it is founded is that ‘if two devices do the same work in substantially the same way, and accomplish substantially the same result,- they are ‘the same, even though they differ in name, form or shape.’ Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935.” On this phase of the case we are of the view that the accused devices used by the defendant infringe the Hunt patent. It is, however, urged that plaintiffs are not entitled to a liberal construction of" }, { "docid": "22262670", "title": "", "text": "not literally infringe the Pall patent is affirmed. B. Infringement by Equivalents When literal infringement is not established, infringement may be proved under the doctrine of equivalents when there is not a substantial difference between the claimed invention and the accused product. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950); Hilton Davis Chemical Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 35 USPQ2d 1641 (Fed.Cir.1995) (en banc). The determination of whether the accused product is substantially the same as the claimed invention is a question of fact, and the district court’s determination thereof is reviewed for clear error. Id. at 1521, 35 USPQ2d at 1647. The district court found that MSI’s nylon 46 membranes had substantially the same chemical and physical structure, performed the same function in the same way, and achieved the same result, as Pall’s claimed membranes. The court thus found that claim 116 was infringed under the doctrine of equivalents. MSI does not argue on this appeal that the nylon 46 and nylon 66 membranes are not equivalent. Instead, MSI argues that Pall is estopped to establish infringement based on equivalency because during patent prosecution Pall voluntarily gave up claim scope that would have literally included nylon 46. MSI asserts that Pall is estopped from obtaining that scope under the doctrine of equivalents, even if the products are in fact equivalent. Prosecution history estoppel limits infringement by otherwise equivalent structures, by barring recapture by the patentee of scope that was surrendered in order to obtain allowance of the claims. Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279, 1285, 230 USPQ 45, 48 (Fed.Cir.1986); Thomas and Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir.1983). Thus, by actions taken during patent prosecution the patentee can be estopped from reaching subject matter that otherwise meets the criteria of equivalency. Pall states that there is no estoppel with respect to nylon 46, because no claim scope covering nylon 46 was yielded due to prior art or based" }, { "docid": "8934636", "title": "", "text": "from two separate pieces, the small-diameter tube and the large-diameter tube, held together by a third piece, a glued-in molded, apertured junction. Another difference is that the Polaris catheter’s secondary openings are located directly above the tapered portion or juncture, in the flat area of the large-diameter tube, while the Amrine catheter’s secondary openings are located in the aper-tured juncture. Further, the Polaris catheter contains a “reinforcement collar” at the location of the secondary drainage openings that is designed to prevent kinking when the heart is manipulated; the Amrine catheter has no such reinforcement. The court considers these differences sufficiently material to find the Polaris catheter does not literally infringe claims 5 and 6 of the ’129 patent. Based on its finding no literal infringement, the court need not discuss RMI’s arguments regarding the “reverse order of equivalents doctrine.” B. Doctrine of Equivalents Under the doctrine of equivalents, an accused product, that does not literally infringe a structural claim, may infringe “if it performs substantially the same function in substantially the same way to obtain the same result.” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 609, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 U.S.P.Q. 328, 331 (1950) (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 12-13, 74 L.Ed. 147 (1929)); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361, 219 U.S.P.Q. 473, 480 (Fed.Cir.1983); Raytheon Co. v. Roper Corp., 724 F.2d 951, 961, 220 U.S.P.Q. 592, 600 (Fed.Cir.1983), cert. denied, 469 U.S. 835, 105 S.Ct. 127, 83 L.Ed.2d 69 (1984). However, the doctrine of equivalents is restricted by prosecution history estoppel, which “ ‘limits a patentee’s reliance on the doctrine of equivalents by preventing him from contending later in an infringement action that his claims should be interpreted as if limitations added by amendment were not present.... ’” Townsend Eng’g., 829 F.2d at 1090, 4 U.S.P.Q.2d at 1139 (quoting Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1579, 220 U.S.P.Q. 1, 6 (Fed.Cir.1983)). “Prosecution history estoppel applies both to claim amendments to overcome rejections" }, { "docid": "23644698", "title": "", "text": "In determining obviousness vel non the district court must consider all evidence that bears upon the issue, including secondary considerations. Stratoflex, 713 F.2d at 1538, 218 USPQ at 879. Ill As noted, the district court determined that the flat-ended cross brace of the MTD wheelbarrow was the equivalent of the channel-ended cross brace claimed in the ’600 patent. It held, however, that the MTD wheelbarrow was a “different structure” from the wheelbarrow claimed in the ’600 patent because of the filler strips in the MTD wheelbarrow and the lack of any explicit reference to those strips in the claims of the ’600 patent. Radio contests the ruling that the lack of any specific reference to the filler strips in the claims of the ’600 patent prevented infringement. MTD argues that the district court erred in holding that its cross brace was the equivalent of the cross brace disclosed in the ’600 patent. A. Even though a device does not literally infringe the claim of a patent, “a patentee may invoke [the] doctrine [of equivalents] to proceed against the producer of a device ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ ” Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950), quoting from Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147, 3 USPQ 40 (1929). See also Caterpillar Tractor Co. v. Berco, S.P.A., etc., 714 F.2d 1110, 219 USPQ 185 (Fed.Cir. 1983); Hughes Aircraft v. United States, 717 F.2d 1351, 219 USPQ 473 (Fed.Cir. 1983). A finding of equivalency is factual, and will not be overturned on appeal unless clearly erroneous. Thomas & Betts Corp. v. Litton Systems, Inc., 720 F.2d 1572, 220 USPQ 1 (Fed.Cir.1983). The district court found that the flat-ended cross brace was the equivalent of the channel-ended cross brace because [t]he claimed function of the end sections of the cross brace in the ... patent is to secure the handle portions with the two pieces" }, { "docid": "11792439", "title": "", "text": "height even as low as 8 or 9 feet,” id. at 8. There is no evidence any misrepresentation here was made intentionally or with gross negligence. We hold that the patent is fully enforceable. Ill INFRINGEMENT In determining whether there is infringement, a court looks first “to the words of the claims contained in the patent and if the accused device falls clearly and definitely within those claims, infringement is made out.” McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 401 (10th Cir. 1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966). A device may infringe either “literally” by matching each feature of the patent claim, or it may infringe as the “equivalent” of the patented device. A device is “equivalent” if it “performs substantially the same function in substantially the same way to obtain the same result,” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929)). However, a patent holder is es-topped from asserting equivalency if he “gave up” the accused device’s mode of operation in order to meet the patent office’s prior art objections. This is determined by reviewing the history of the patent application as noted on the “wrapper” of the patent file; it is customarily termed “file wrapper estoppel.” J-M argues that its luminaire does not literally infringe and is not the equivalent of LUXXtra, and that based upon the file wrapper history, Lam is estopped from a construction of its patent claim that would embrace a parabolic surface. Whether a device literally infringes or is the equivalent, and whether the patent holder is subject to file wrapper estoppel, are questions of fact. We will not set aside the trial court’s findings unless they are clearly erroneous. E.g., Milgo Elec. Corp. v. United Business Communications, Inc., 623 F.2d 645, 656 (10th Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 610 (1980); Eimco Corp. v. Peterson Filters" }, { "docid": "10304719", "title": "", "text": "755 F.2d 1570, 225 U.S.P.Q. 236 (Fed. Cir.1985). The claims of the reissue patent read directly on Machine No. 2. Machine No. 2 literally infringes the Chisum reissue patent. Machine No. 3 infringes the Chisum reissue patent under the doctrine of equivalents. The essence of the doctrine of equivalents is that one may not practice a fraud on a patent. A patentee may invoke this doctrine to proceed against the producer of the device if it performs substantially the same function in substantially the same way to obtain the same result. The theory on which it is founded is that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape. Graver Tank & Mfg. Co. v. Linde Air Products, 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950), citing Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 citing Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935 (1877). A finding of equivalents is a determination of fact. Proof can be made in any form: through testimony of experts or others versed in the the technology; by documents, including texts and treatises; and by the disclosures of prior art. Like any other issue of fact, final determination requires a balancing of credibility, persuasiveness and weight of evidence. Graver Tank & Mfg. Co., supra at 610-11, 70 S.Ct. at 857-858. Machine No. 3 is admitted to employ structural elements a, b, and f of Claim 1 of the reissue patent. Machine No. 3 employs “at least one vertical pull tower means pivotally connected about a vertical axis fixed to said platform system rotatably moveable to a desired position relative to said structure,” as claimed in element c of the reissue patent. The vertical pull tower means of Machine No. 3 travels on an oval track around the vehicle. At each end of the track the pull tower means is rotatably moveable to a desired position relative" }, { "docid": "11473186", "title": "", "text": "— U.S. -, 116 S.Ct. 1014, 134 L.Ed.2d 95 (Feb. 26, 1996); see also Roton Barrier, Inc. v. The Stanley Works, 79 F.3d 1112, 1126 (Fed.Cir.1996) (“In Hilton Davis, this court, in reviewing the doctrine of equivalents, stated that the traditional function, way, result tripartite test is not ‘the’ test for infringement under the doctrine of equivalents .... Rather, a finding of infringement under the doctrine ‘requires proof of insubstantial differences between the claimed and accused products or processes....’ Thus, satisfaction of the tripartite test may not end the infringement inquiry,” but may instead require the court to consider copying or designing around the patent); National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1191 (Fed.Cir.1996) (“In Hilton Davis the court reaffirmed that proof of equivalency is not a matter of formula, but of evidence appropriate to the case.”); Modine Mfg. Co. v. U.S. Int’l Trade Comm’n, 75 F.3d 1545, 1556 (Fed.Cir.1996) (“The controlling criterion, as reaffirmed in Hilton Davis, 62 F.3d at 1518, 35 USPQ2d at 1645, is whether the accused device is substantially the same as the claimed invention. See Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855-56, 94 L.Ed. 1097 (1950) (insubstantial changes do not avoid the application of the doctrine of equivalents).”); Sofamor, 74 F.3d at 1221-22 (citing Hilton Davis for the “insubstantial changes” test, and finding that test was drawn from Graver Tank’s rejection of a “formula” for determining equivalence, and noting Hilton Davis’s rejection of the funetion-way-result tests as “the test”); Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1218 (Fed.Cir.1995) (Hilton Davis reaffirmed Graver Tank’s recognition of a requirement of “substantial difference”). It could be asserted that a matter of a few degrees of pivot is only an “insubstantial difference,” and therefore is “sub stantially equivalent” to the last limitation of claim 1 of the ’214 patent. However, Circle R cannot make such an argument. “Prosecution estoppel” prevents a patentee from recapturing within the scope of the claims of the patent under the doctrine of equivalents any scope of the" }, { "docid": "37755", "title": "", "text": "the doctrine of equivalents is reached only when there is no literal infringement. Seattle Box Co. v. Industrial Crating & Packing, Inc., 731 F.2d 818, 828 (Fed.Cir.1984). Thus, the literal language of the patent does not define the “metes and bounds” of the claims when determining equivalence. Thomas & Betts Corp. v. Litton Systems, 720 F.2d 1572, 1579 (Fed.Cir.1983). The doctrine of equivalents is a judicially-created equitable doctrine designed to prevent an infringer who does not literally infringe an invention from nonetheless “stealing the benefit of an invention.” Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (quoting Royal Typewriter Co. v. Remington Rand, 168 F.2d 691, 692 (2d Cir.), cert. denied, 335 U.S. 825, 69 S.Ct. 50, 93 L.Ed. 379 (1948)). It represents an exception to the general rule that a patent’s claims define the metes and bounds of patent protection. Texas Instruments, Inc. v. United States Int’l Trade Comm’n, 805 F.2d 1558, 1572 (Fed.Cir.1986). Because it is a relatively narrow exception, it should not be used to defeat the legitimate process of “inventing around” an adversely held patent. Id. Under the doctrine of equivalents, infringement may be found if the Exac devices perform substantially the same function as the Micro Motion inventions, in substantially the same way, to obtain substantially the same result. Graver Tank, 339 U.S. at 608, 70 S.Ct. at 856 (citing Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929)). If any one of these three elements of equivalence are not present in the accused device, then there is no infringement of that claim. Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422, 1425-27 (Fed.Cir.1989). Micro Motion has the burden to prove infringement under this doctrine by a preponderance of the evidence. SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1123 (Fed.Cir.1985). Determination of infringement under this doctrine is a two-step process. First, the literal language of the claims must be construed to determine their meaning and scope. Any definitional questions are" }, { "docid": "22250582", "title": "", "text": "avoids literal infringement of the claims. Estoppel Mannesmann argues that even if literal infringement does not lie, the district court clearly erred in finding no infringement by equivalents. Mannesmann argues that the EMPCO structure “performs substantially the same function in substantially the same way to obtain the same result”, the standard for equivalency discussed in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950) (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147, 3 USPQ 40, 44 (1929)). The district court held that Mannesmann is estopped to assert infringement by equivalents, as applied to the Zang claims and the EMPCO structure, because of Zang’s amendments and arguments during prosecution of the patent application. Specifically, the district court held that the insertion into clause (d) of the limitation that neighboring sections of cooling pipe coil be arranged “in a contacting relation”, rather than “closely adjacent” as originally phrased, bars recourse to the doctrine of equivalents to cover the EMPCO coils. Mannesmann cites Deere & Co. v. International Harvester Co., 460 F.Supp. 523, 534, 200 USPQ 150,159-60 (S.D.Ill.1978), in support of the proposition that “[¡Infringement is not avoided by separating a one-piece element into several parts if the element does accomplish the same result in substantially the same way.” Mannesmann argues that EMPCO should not escape infringement merely because it designed an equivalent structure wherein each pipe is brought into substantial contact with its neighboring pipe by a small bar called a slag-stopping bar. The trial court made no explicit finding as to whether these structures were equivalent, holding instead that Mannesmann was estopped by the prosecution history from asserting such equivalence. The doctrine of prosecution history estoppel is “an equitable tool for determining the permissible scope of patent claims” as against a specific structure accused of infringement. Builders Concrete, 757 F.2d at 258, 225 USPQ at 242. This doctrine bars a patentee from construing its claims in a way that would resurrect subject matter previously surrendered" }, { "docid": "7300124", "title": "", "text": "next and necessary question — whether the two devices are basically equivalent in means, operation and result. Although the trial court did not discuss the doctrine of equivalents, it found that because of the difference in movement of the roller chains of the two machines, defendant’s device was “basically different.” 324 F.Supp. at 209. We hold this finding to be clearly erroneous. In Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), the Supreme Court explained that the doctrine of equivalents prevented fraud by copyists making changes in a patent “which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of the law.” 339 U.S. at 607, 70 S.Ct. at 856. The Court described the test to be that, “ ‘if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape.’” 339 U.S. at 608, 70 S.Ct. at 856. Applying the equivalency test in this circuit entails making the determination that, “ ‘the infringing device must be substantially identical with the one alleged to be infringed in (1) the result attained; (2) the means of attaining that result; and (3) the manner in which its different parts operate and cooperate to produce that result.’ ” Montgomery Ward & Co. v. Clair, 123 F.2d 878, 881 (8 Cir. 1941). See Ralston Purina Co. v. General Foods Corp., 442 F.2d 389, 393 (8 Cir. 1971); General Bronze Corp. v. Cupples Products Corp., 189 F.2d 154, 159 (8 Cir. 1951). There is no dispute that the Craven haystack mover substantially matches the patent in the means used and the result attained. Argument is made that the Craven machine is an improvement over the patented device by better compacting the haystack. However, it is well settled that “an improver cannot appropriate the basic patent of another. . ” Temco Electric Motor Co. v. Apco Mfg. Co., 275 U.S. 319, 328, 48 S.Ct." }, { "docid": "22476816", "title": "", "text": "drive does not act as a fixed positional reference for the disk as expressly required by claim 1. Rather, the first transducer in the Mitsubishi drives follows the movements of the disk, i.e., the disk is not forced to conform to the first transducer.” We uphold, as supported by substantial evidence, the factual findings of the AU and the Commission, who had details of the measurements and how they were obtained, and the examination and cross-examination of witnesses as to the data’s genesis and significance. Based on these findings, the Commission’s finding that there was no literal infringement is supported by substantial evidence, and is affirmed. B. Tandon argues that even if the claims are not literally infringed, they are infringed under the doctrine of equivalents. Tan-don asserts that the accused devices, as compared with Tandon’s claims, perform “substantially the same function in substantially the same way to obtain the same result.” Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950) (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929)). Although Mitsubishi argues that Tandon relinquished the possibility of asserting equivalency that would encompass the Mitsubishi devices because of the amendments to the claims and representations made to the PTO during prosecution of the Tandon application, Tandon is not estopped from claiming any equivalents at all. See Mannesmann Demag Corp. v. Engineered Metal Products Co., Inc., 793 F.2d 1279, 1284, 230 USPQ 45, 48 (Fed.Cir. 1986) (“Amendment of claims during patent prosecution does not necessarily bar all benefit of the doctrine of equivalents”). However, claims may not be enlarged by equivalents to encompass the teachings of the prior art. Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900, 221 USPQ 669, 678 (Fed.Cir.1984), cert. denied, 469 U.S. 857, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984). Based on Tandon’s statements to distinguish the IBM prior art before the PTO, the Commission held that Tandon could not broaden the scope of its claims to include devices" } ]

[ { "docid": "23339284", "title": "", "text": "supported by attached medical records of examinations by Dr. Vise and other physicians at the Mississippi Methodist Hospital, who consulted with Dr. Vise on Scott’s condition, including Dr. William Kliesch. Although Dr. Kliesch never rendered a direct opinion as to Scott’s disability, he had ordered her in October of 1981 to stay at home and not return to work. While he at times noted that her condition was improving, he never advised her to return to work. We therefore see no basis for the AU's determination that there were “no clinical or laboratory findings” to support Dr. Vise’s opinion that Scott was totally disabled. This court has repeatedly held that ordinarily the opinions, diagnoses and medical evidence of a treating physician who is familiar with the claimant’s injuries, treatment, and responses should be accorded considerable weight in determining disability. There are exceptions to this principle. The AU may give less weight to a treating physician’s opinion when “there is good cause shown to the contrary,” as is the case when his statement as to disability is “so brief and conclusory that it lacks strong persuasive weight,” is not supported by medically acceptable clinical laboratory diagnostic techniques, or is otherwise unsupported by the evidence. The AU may also reject a treating physician’s opinion if he finds, with support in the record, that the physician is not credible and is “leaning over backwards to support the application for disability benefits.” The administrative fact finder is entitled to determine the credibility of medical experts as well as lay witnesses and to weigh their opinions and testimony accordingly. Dr. Vise’s medical opinion, based upon his examination and treatment of his patient over a period of several months, was clearly supported by “acceptable diagnostic techniques.” His diagnosis of disability was, moreover, uncontradicted by other testimony. No other reviewing or examining physician stated that Scott was capable of gainful employment. Dr. Kliesch, as we have noted, told Scott to stay home and there is no evidence that he lifted that restriction. Dr. Vise’s evaluation has ample evidentiary support. Dr. Vise’s wife, for whom Scott had worked" } ]

[ { "docid": "22559203", "title": "", "text": "reasons set forth in the ALJ’s decision, as adopted by the Appeals Council. See Knipe v. Heckler, 755 F.2d 141, 149 n. 16 (10th Cir.1985) (citing Dong Sik Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (en banc)). S. ALJ’s Failure to Give Treating Physician’s Opinions Proper Weight The ALJ correctly placed the burden on Newton at the fourth step of the five-step process. It appears, however, that the ALJ did not properly place the burden on the Commissioner at the fifth step. The ALJ stated that Pertusi’s opinions regarding the claimant’s residual functional capacity, specifically his opinion that Newton could not perform even sedentary work during the period of claimed disability, were not entitled to “great weight.” In actuality, the ALJ gave Pertusi’s opinions no weight. The ALJ found Pertusi’s opinion regarding residual functional capacity was not rehable because it was insufficiently substantiated by clinical or diagnostic evidence, and thus was conclusory. The ALJ also faulted Pertusi for failing to include work restrictions for Newton in his medical notes and contemporaneous records during the 1989-1994 period, finding that this omission undermined Pertusi’s credibility as to his assessment of claimant’s residual functional ca-pacify. The ALJ also rejected Pertusi’s opinions because of the inconsistency between Pertusi’s January 30, 1995 opinion that Newton was totally disabled and the fact that at the time of Pertusi’s opinion Newton was working 25-35 hours per week. Requirements for Giving Weight to Treating Physicians’ Opinions. — The opinion of the treating physician who is familiar with the claimant’s impairments, treatments and responses, should be accorded great weight in determining disability. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). A treating physician’s opinion on the nature and severity of a patient’s impairment will be given controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with ... other substantial evidence.” Martinez, 64 F.3d at 176 (citing 20 C.F.R. § 404.1527(d)(2)). “The opinion of a" }, { "docid": "22226928", "title": "", "text": "The SSA has promulgated regulations prescribing a five-step analysis for evaluating disability claims. “In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a ‘severe impairment,’ (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do.” Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002); see also Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). The claimant bears the burden of proof on the first four steps, while the SSA bears the burden on the last step. See id. In this case, as we have indicated, the ALJ found that Green-Younger has fibro-myalgia and degenerative disc disease; that her impairments were severe but did not equal or exceed a listed impairment; and that she had the residual functional capacity to do sedentary work, involving six hours a day of sitting and two hours of standing or walking. The ALJ rejected the contrary opinion of Green-Younger’s treating physician, Dr. Helfand, that her limitations were more severe. The SSA recognizes a “treating physician” rule of deference to the views of the physician who has engaged in the primary treatment of the claimant. “A treating physician’s statement that the claimant is disabled cannot itself be determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, SSA regulations advise claimants that “a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) ” will be given “controlling weight” if the opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2) (emphasis added). See also Shaw, 221 F.3d at 134; Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999) (“[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.”). We conclude from the record" }, { "docid": "22896779", "title": "", "text": "medical examination, Martinez cites Dr. Daily’s statement at the hearing that he would not “send [Martinez] out today to do medium work,” arguing that there is “no evidence” to show that Martinez can perform medium work. Martinez misses the point and misconstrues Dr. Daily’s statement. Dr. Daily did not state that Martinez was incapable of medium work; he stated that without further testing he could not determine whether Martinez was capable of medium work. Thus, Martinez’ argument that there is no evidence to support the finding of no disability is incorrect. Martinez also insists that the district court erred by disregarding the evidence of his treating physician, Dr. Yeung Chan. AJ- though not conclusive, an evaluation by the claimant’s treating physician should be accorded great weight. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1984, 131 L.Ed.2d 871 (U.S.1995). A treating physician’s opinion on the nature and severity of a patient’s impairment will be given controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with ... other substantial evidence.” 20 C.F.R. § 404.1527(d)(2). Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, “the ALJ has sole responsibility for determining a claimant’s disability status.” Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir.1990). “ ‘[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.’ ” Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.1987) (citation omitted). Dr. Chan’s opinion that Martinez is totally disabled is not entitled to controlling weight because Dr. Chan failed to provide a medical explanation for his opinion, and because Dr. Chan’s opinion is inconsistent with the opinions of Drs. Long and Moore, which were based on clinical test results. As substantial evidence supports the determination that Martinez is not disabled, the Commissioner’s decision must stand. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390, 91 S.Ct. at 1422; Villa, 895 F.2d at 1021-22. AFFIRMED. . Dr. Daily also recommended follow-up psychological or" }, { "docid": "23081974", "title": "", "text": "whether she could perform any other kind of work. Travis, 477 F.3d at 1040 (citing 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)). In this case, the ALJ determined Halverson was unable to perform past relevant work as a receptionist, waitress, administrative clerk, and bill sorter. However, the ALJ concluded there was other work she could perform, such as a document preparer, table worker, photocopy machine operator, and order caller. As a result, the ALJ determined she was not disabled and was not entitled to benefits. A. The ALJ’s Decision to Discount the Treating Physician’s Opinion Halverson first argues the ALJ did not properly consider the medical evidence from her treating psychiatrist, Dr. Michael Taylor. “A treating physician’s opinion is given controlling weight if it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant’s] case record.’ ” Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir.2009) (quoting 20 C.F.R. § 404.1527(d)(2)). “The record must be evaluated as a whole to determine whether the treating physician’s opinion should control.” Id. When a treating physician’s opinions “are inconsistent or contrary to the medical evidence as a whole, they are entitled to less weight.” Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir.2002). Dr. Taylor diagnosed Halverson with major depressive disorder, generalized anxiety disorder, and PTSD. According to Dr. Taylor, Halverson’s prognosis was poor and she was unable to perform a number of job-related tasks essential in the average workplace. Halverson contends the ALJ improperly discounted Dr. Taylor’s opinions when it determined the medical records did not generally support Dr. Taylor’s conclusions. Halverson also asserts the ALJ relied exclusively on the February 2006 office visit, during which Dr. Taylor noted Halverson’s attire and makeup bordered on outlandish, and her mental status examination was “totally inconsistent with her subjective complaints.” Halverson contends this was only the second time she had visited Dr. Taylor, and his assessment of her impairments changed significantly in subsequent visits in March and April 2006 as he came to know her better. Finally, Halverson argues it was" }, { "docid": "22559205", "title": "", "text": "specialist generally is accorded greater weight than that of a non-specialist.” Paul v. Shalala, 29 F.3d 208, 211 (5th Cir.1994). Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, “the ALJ has sole responsibility for determining a claimant’s disability status.” Id. “ ‘[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.’ ” Id. The treating physician’s opinions are not conclusive. See Brown, 192 F.3d at 500. The opinions may be assigned little or no weight when good cause is shown. Greenspan, 38 F.3d at 237. Good cause may permit an ALJ to discount the weight of a treating physician relative to other experts where the treating physician’s evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the evidence. See, e.g., Brown, 192 F.3d at 500; Greenspan, 38 F.3d at 237; Paul, 29 F.3d at 211. Factors to be Considered Before Declining to Give Treating Physicians’ Opinions Controlling Weight. — SSA Regulations provide that the SSA “will always give good reasons in [its] notice of determination or decision for the weight [it gives the claimant’s] treating source’s opinion” and list factors an ALJ must consider to assess the weight to be given to the opinion of a treating physician when the ALJ determines that it is not entitled to “controlling weight.” See 20 C.F.R. § 404.1527(d)(2). Specifically, this regulation requires consideration of: (1) the physician’s length of treatment of the claimant, (2) the physician’s frequency of examination, (3) the nature and extent of the treatment relationship, (4) the support of the physician’s opinion afforded by the medical evidence of record, (5) the consistency of the opinion with the record as a whole; and (6) the specialization of the treating physician. The regulation is construed in Social Security Ruling (“SSR”) 96-2p, which states: [A] finding that a treating source medical opinion is not well supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record" }, { "docid": "22559204", "title": "", "text": "during the 1989-1994 period, finding that this omission undermined Pertusi’s credibility as to his assessment of claimant’s residual functional ca-pacify. The ALJ also rejected Pertusi’s opinions because of the inconsistency between Pertusi’s January 30, 1995 opinion that Newton was totally disabled and the fact that at the time of Pertusi’s opinion Newton was working 25-35 hours per week. Requirements for Giving Weight to Treating Physicians’ Opinions. — The opinion of the treating physician who is familiar with the claimant’s impairments, treatments and responses, should be accorded great weight in determining disability. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). A treating physician’s opinion on the nature and severity of a patient’s impairment will be given controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with ... other substantial evidence.” Martinez, 64 F.3d at 176 (citing 20 C.F.R. § 404.1527(d)(2)). “The opinion of a specialist generally is accorded greater weight than that of a non-specialist.” Paul v. Shalala, 29 F.3d 208, 211 (5th Cir.1994). Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, “the ALJ has sole responsibility for determining a claimant’s disability status.” Id. “ ‘[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.’ ” Id. The treating physician’s opinions are not conclusive. See Brown, 192 F.3d at 500. The opinions may be assigned little or no weight when good cause is shown. Greenspan, 38 F.3d at 237. Good cause may permit an ALJ to discount the weight of a treating physician relative to other experts where the treating physician’s evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the evidence. See, e.g., Brown, 192 F.3d at 500; Greenspan, 38 F.3d at 237; Paul, 29 F.3d at 211. Factors to be Considered Before Declining to Give Treating Physicians’ Opinions Controlling Weight." }, { "docid": "19717146", "title": "", "text": "reports; 2) the ALJ improperly rejected Plaintiffs description of his pain and the extent of his impairments; and 3) the ALJ improperly evaluated the medical evidence. This Court agrees. A. Treating Physician Rule In evaluating the available medical evidence as part of an application for disability benefits, “[t]he law gives special evidentiary weight to the opinion of the treating physician[s].” Clark, 143 F.3d at 118. Specifically, the regulations provide: Generally, [the SSA] give[s] more weight to opinions from [a claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairments) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. 20 C.F.R. § 404.1527(c)(2). For these reasons, the opinion of a treating physician must be given controlling weight on the issue of the nature and severity of a claimant’s impairments, if that opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” Id. If a treating physician’s opinion is not given controlling weight because it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques and is inconsistent with the other substantial evidence in the case record, then six factors must be assessed in order to determine how much weight to afford the treating medical opinion and other medical opinions: 1) whether the physician examined the claimant; 2) the nature and extent of the treatment relationship, including the length of the relationship and the frequency of examination; 3) the evidence in support of each opinion, such as medical signs, laboratory findings, and more complete explanations; 4) the extent to which the opinion is consistent with the record as a whole; 5) whether the medical provider is a specialist; and 6) any other relevant factors. Id. § 404.1527(c). The Second Circuit has instructed that remand is appropriate “when the Commissioner has not provided ‘good reasons’ for the weight given" }, { "docid": "10816843", "title": "", "text": "“Dr. Manzella Letter”) that listed a number of conditions from which Plaintiff reportedly suffers and concluded that Plaintiff was “incapable of work” and recommended she receive “full disability.” (Tr. 249-51). The ALJ explained that although the Dr. Manzella Letter listed 12 conditions, this list was “an exaggeration and unfounded” because most of it was either unconfirmed or contradicted by the objective medical tests. (Tr. 22). Treating physicians “may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.... ” 20 C.F.R. §§ 404.1527(c)(2), 416.927(C)(2). The “treating physician rule” requires the ALJ to give “controlling weight” to the opinion of a claimant’s treating physician “regarding the nature and severity of [the claimant’s] impairments ... [if it] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). As explained by the Second Circuit Court of Appeals: An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various “factors” to determine how much weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2). Among those factors are: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration’s attention that tend to support or contradict the opinion. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). An ALJ does not have to explicitly walk through these factors, so long as the Court can “conclude that the ALJ applied the substance of the treating physician rule ... and provide[d] ‘good reasons’ for the weight she gives to the treating source’s opinion.” Id. In this case, ALJ Brady properly applied the treating physician rule by explicitly stating that he was giving little weight to the Dr. Manzella Statement" }, { "docid": "8018390", "title": "", "text": "“An ALJ’s decision is not outside the ‘zone of choice’ simply because we might have reached a different conclusion had we been the initial finder of fact.” Id. A. Casey first contends that the ALJ improperly weighed the medical evidence in determining that she was not disabled. In particular, Casey argues that the ALJ gave too little weight to the opinions of physicians that treated and examined her and too much weight to the opinion of a physician who performed a paper review of the medical records. The ALJ had a duty to evaluate the medical evidence as a whole. See Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir.2001). While a “ ‘treating physician’s opinion is generally entitled to substantial weighty] ... such an opinion is not conclusive in determining disability status, and the opinion must be supported by medically acceptable clinical or diagnostic data.’ ” Pena v. Chater, 76 F.3d 906, 908 (8th Cir.1996) (quoting Davis v. Shalala, 31 F.3d 753, 756 (8th Cir.1994)); see also 20 C.F.R. § 404.1527(d)(2) (“If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairments) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.”). “[A]n ALJ may credit other medical evaluations over that of the treating physician when such other assessments are sup ported by better or more thorough medical evidence.” Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir.2000) (quotation and citation omitted). In considering how much weight to give a treating physician’s opinion, an ALJ must also consider the length of the treatment relationship and the frequency of examinations. 20 C.F.R. § 404.1527(d)(2)®. According to Casey, the ALJ’s “most outrageous error” was the failure to credit the testimony of Lawrence Rettenmaier, M.D., the rheumatologist who treated Casey’s fibromyalgia. Appellant’s Br. at 25. Initially, it is important to note that contrary to Casey’s suggestion, the ALJ did not reject all of Dr. Rettenmaier’s opinions. The ALJ discussed and gave weight to Dr. Rettenmaier’s" }, { "docid": "22397438", "title": "", "text": "§ 702.338. With respect to “the nature and severity of [a claimant’s] impairment(s),” 20 C.F.R. § 404.1527(d)(2), “[t]he SSA recognizes a ‘treating physician’ rule of deference to the views of the physician who has engaged in the primary treatment of the claimant,” Greeny-Younger, 335 F.3d at 106. According to this rule, the opinion of a claimant’s treating physician as to the nature and severity of the impairment is given “controlling weight” so long as it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2); see, e.g., Green-Younger, 335 F.3d at 106; Shaw, 221 F.3d at 134. “[M]edically acceptable clinical and laboratory diagnostic techniques” include consideration of “[a] patient’s report of complaints, or history, [a]s an essential diagnostic tool.” GreenYounger, 335 F.3d at 107 (internal quotation marks omitted). Generally, “the opinion of the treating physician is not afforded controlling weight where ... the treating physician issued opinions that are not consistent with ... the opinions of other medical experts,” Halloran, 362 F.3d at 32, for “[g]enuine conflicts in the medical evidence are for the Commissioner to resolve,” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002). However, not all expert opinions rise to the level of evidence that is sufficiently substantial to undermine the opinion of the treating physician. For example, we have found an expert’s opinion “not substantial,” i.e., “[]not reasonably” capable of “supporting] the conclusion that [the claimant] e[ould] work” where the expert addressed only “deficits” of which the claimant was “not complaining,” Green-Younger, 335 F.3d at 107-08, or where the expert was a consulting physician who did not examine the claimant and relied entirely on an evaluation by a non-physician reporting inconsistent results, see id,., or where the expert described the claimant’s impairments only as “[l]ifting and carrying moderate!,] standing and walking, pushing and pulling and sitting mild,” giving an opinion couched in terms “so vague as to render it useless in evaluating” the claimant’s residual functional capacity, Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.2000). Nor is the" }, { "docid": "22559196", "title": "", "text": "decides whether: (1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe impairment; (3) the claimant’s impairment meets or equals a listed impairment in Appendix 1 of the Regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520. The claimant bears the burden of proof on the first four steps and the burden shifts to the Commissioner for the fifth step. Thus, the claimant must show first that she is no longer capable of performing her past relevant work. 20 C.F.R. § 404.1520(e). If the claimant satisfies this burden, then the Commissioner must show that the claimant is capable of engaging in some type of alternative work that exists in the national economy. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir.1987). Once the Commissioner makes this showing, the burden of proof shifts back to the claimant to rebut this finding. Id. III. DISCUSSION In her appeal from the final decision of the Commissioner and on appeal before this court, Newton argues that the ALJ failed to give proper weight to the opinion of Newton’s treating physician, erroneously relied on the medical-vocational guidelines, and improperly failed to consider Newton’s ongoing medical treatment when assessing her ability to work. Newton also argues that the Appeals Council failed to consider new evidence presented on appeal. A. Consideration of Treating Physician’s Opinion Newton argues that the ALJ erred as a matter of law by failing to give proper weight to the opinion of her treating physician. Specifically, Newton argues that the ALJ failed to comply explicitly with applicable Social Security Administration (“SSA”) regulations for evaluating a treating physician’s opinion. The Court concludes that, absent reliable medical evidence from a treating or examining physician controverting the claimant’s treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician’s views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2). Additionally, if the ALJ determines that the" }, { "docid": "15054708", "title": "", "text": "guard monitor and food preparer. The ALJ therefore found plaintiff not disabled and denied the application. (Tr. at 24-27.) III. DISCUSSION Plaintiff argues that the ALJ erred in (1) evaluating the treating source reports from Drs. Courier, Lanzarotti and Dresden; (2) finding his mental impairment non-severe; (3) assessing the Listings; and (4) determining credibility. I address each argument in turn. A. Treating Source Reports 1. Legal Standard Because of their greater familiarity with the claimant’s conditions and circumstances, the SSA affords medical opinions from a claimant’s treating physicians special consideration. If such an opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the case record, the ALJ must give it “controlling weight.” SSR 96-8p; Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000). Even if the ALJ finds that a treating source opinion does not meet the standard for controlling weight, he may not simply reject it. SSR 96-2p. Rather, he must determine the weight to give the opinion by considering various factors, including the length, nature and extent of the claimant and physician’s treatment relationship; the degree to which the opinion is supported by the evidence; the opinion’s consistency with the record as a whole; and whether the doctor is a specialist. 20 C.F.R. § 404.1527(d). “In many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p. Regardless of the weight the ALJ elects to give the treating source opinion, he must always “give good reasons” for his decision. 20 C.F.R. § 404.1527(d)(2). Finally, the “ALJ must not substitute his own judgment for a physician’s opinion without relying on other medical evidence or authority in the record.” Clifford, 227 F.3d at 870; see also Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996). 2. Analysis As indicated, the ALJ in his 2008 decision essentially adopted his conclusions about the medical evidence and treating source reports from the 2006 decision. (See Tr. at 24.) In the earlier decision, the" }, { "docid": "22397437", "title": "", "text": "that he or she has a disability within the meaning of the Act, see, e.g., Draegert v. Barnhart, 311 F.3d at 472, and “bears the burden of proving his or her case at steps one through four” of the sequential five-step framework established in the SSA regulations, Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004). However, “[bjecause a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Melville, 198 F.3d at 51; see, e.g., Shaw, 221 F.3d at 134. SSA regulations provide that an ALJ shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the administrative law judge believes that there is relevant and material evidence available which has not been presented at the hearing, he may adjourn the hearing or, at any time, prior to the filing of the compensation order, reopen the hearing for the receipt of such evidence. 20 C.F.R. § 702.338. With respect to “the nature and severity of [a claimant’s] impairment(s),” 20 C.F.R. § 404.1527(d)(2), “[t]he SSA recognizes a ‘treating physician’ rule of deference to the views of the physician who has engaged in the primary treatment of the claimant,” Greeny-Younger, 335 F.3d at 106. According to this rule, the opinion of a claimant’s treating physician as to the nature and severity of the impairment is given “controlling weight” so long as it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2); see, e.g., Green-Younger, 335 F.3d at 106; Shaw, 221 F.3d at 134. “[M]edically acceptable clinical and laboratory diagnostic techniques” include consideration of “[a] patient’s report of complaints, or history, [a]s an essential diagnostic tool.” GreenYounger, 335 F.3d at 107 (internal quotation marks omitted). Generally, “the opinion of the treating physician is not afforded controlling weight where ... the treating physician issued opinions that are not consistent with ... the opinions of other medical" }, { "docid": "22999269", "title": "", "text": "who based his opinion on an imperfect analysis of the reports of the treating physicians. Furthermore, the ALJ failed to consider the evidence carefully. For example, the ALJ cited the fact that Myers was told to lose weight to alleviate pain; however, her doctor also advised her that losing weight would not correct her disc problem, and he consistently recommended surgery. Finally, “[w]e have long held that ‘ordinarily the opinions, diagnoses, and medical evidence of a treating physician who is familiar with the claimant’s injuries, treatments, and responses should be accorded considerable weight in determining disability.’ ” Greenspan, 38 F.3d at 237 (internal citations omitted). See also Loza, 219 F.3d at 395. These opinions are not conclusive, and the ALJ must decide the claimant’s status. Greenspan, 38 F.3d at 237. “Accordingly, when good cause is shown, less weight, little weight, or even no weight may be given to the physician’s testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.” Id.; see also Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.1995) (rejecting an “isolated, conclusory statement” of a treating physician when considered in conjunction with other opinions, objective medical evidence, and claimant’s own testimony). Not only did the ALJ fail to take into consideration all of the evidence from the treating doctors, but he also failed to present good cause as to why he should reject it. An ALJ must consider the following factors before declining to give any weight to the opinions of a treating doctor: length of treatment, frequency of examination, nature and extent of relationship, support provided by other evidence, consistency of opinion with record, and specialization. Newton, 209 F.3d at 456. When presenting hypotheticals to the VE, the ALJ used the ME’s testimony, based only on an incomplete restatement of the treating physicians’ reports, as a basis for his conclusion that Myers could sit for six hours. The ALJ never presented good cause as to why he rejected Dr. Davidson’s opinion that Myers could" }, { "docid": "6632349", "title": "", "text": "she relied on in determining Plaintiffs RFC, failed to incorporate the mental health limitations caused by Plaintiffs pain and fatigue into the RFC, and failed to properly evaluate Plaintiffs subjective complaints. In response, Defendant contends the ALJ considered the evidence of record and reasonably found that Plaintiff could perform a limited range of sedentary work prior to the expiration of her insured status. Defendant asserts the ALJ adequately addressed the medical source opinions and properly discounted opinions that did not pertain to the relevant time period and were inconsistent with other substantial evidence. Defendant also argues the ALJ considered the appropriate factors in concluding that Plaintiffs subjective complaints of disabling limitations were not credible. 1. Medical Opinions A physician’s opinion is typically entitled to controlling weight if it is “well-supported by medically acceptable clinical and laboratory and diagnostic techniques” and not inconsistent with other substantial evidence in the record. Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir.2007) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012-1013 (8th Cir.2000.)) “An ALJ may discount such an opinion if other medical assessments are supported by superior medical evidence, or if the treating physician has offered inconsistent opinions.” Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir.2001). “A non-treating physician’s assessment does not alone constitute substantial evidence if it conflicts with the assessment of a treating physician.” Lehnartz v. Barnhart, 142 Fed.Appx. 939, 942 (8th Cir.2005). If an ALJ determines not to grant controlling weight to a treating physician’s opinion, medical opinions are further evaluated under the framework described in 20 C.F.R. § 404.1527(d). Under such framework, the ALJ should consider the following factors in according weight to medical opinions: (1) whether the source has examined the claimant; (2) the length of the treatment relationship and the frequency of examination; (3) the nature and extent of the treatment relationship; (4) the quantity of evidence in support of the opinion; (5) the consistency of the opinion with the record as a whole; and (6) whether the source is a specialist. Id. The ALJ failed to address Dr. Will’s January 2004 opinion that Plaintiff “could not" }, { "docid": "22086429", "title": "", "text": "meaning of the Social Security Act. The ALJ’s rejection of these conditions as impairments, argues Rogers, necessitated he improperly weigh the treating physician evidence and discount her own testimony. The Commissioner responds that the ALJ’s decision that Rogers can perform her past relevant work is supported by substantial evidence and that she is, therefore, not disabled. B. The ALJ Failed to Properly Evaluate the Medical Opinion Evidence In assessing the medical evidence supplied in support of a claim, there are certain governing standards to which an ALJ must adhere. Key among these is that greater deference is generally given to the opinions of treating physicians than to those of non-treating physicians, commonly known as the treating physician rule. See Soc. Sec. Rul. 96-2p, 1996 WL 374188 (July 2, 1996); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Because treating physicians are “the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone,” their opinions are generally accorded more weight than those of non-treating physicians. 20 C.F.R. § 416.927(d)(2). Therefore, if the opinion of the treating physician as to the nature and severity of a claimant’s conditions is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record,” then it will be accorded controlling weight. Wilson, 378 F.3d at 544. When the treating physician’s opinion is not controlling, the ALJ, in determining how much weight is appropriate, must consider a host of factors, including the length, frequency, nature, and extent of the treatment relationship; the supportability and consistency of the physician’s conclusions; the specialization of the physician; and any other relevant factors. Id. However, in all cases there remains a presumption, albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference, its non-controlling status notwithstanding. Soc. Sec. Rui. 96-2p, 1996 WL 374188, at *4 (“In many cases, a treating physician’s medical opinion will be" }, { "docid": "22226929", "title": "", "text": "sedentary work, involving six hours a day of sitting and two hours of standing or walking. The ALJ rejected the contrary opinion of Green-Younger’s treating physician, Dr. Helfand, that her limitations were more severe. The SSA recognizes a “treating physician” rule of deference to the views of the physician who has engaged in the primary treatment of the claimant. “A treating physician’s statement that the claimant is disabled cannot itself be determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, SSA regulations advise claimants that “a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) ” will be given “controlling weight” if the opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2) (emphasis added). See also Shaw, 221 F.3d at 134; Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999) (“[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.”). We conclude from the record before us that the ALJ erred by failing to give controlling weight to the treating physician’s opinion and effectively requiring objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines. Dr. Helfand’s opinion regarding Green-Younger’s impairments meets the standard under the SSA regulations and should have been accorded controlling weight. Contrary to the government’s contention, Dr. Helfand was not offering an opinion on the ultimate issue of legal disability, but rather on the “nature and severity of [Green-Younger’s] impairments).” He opined that “her ability to function at a normal level because of the persistent, severe pain is markedly limited,” noting specifically that she could not sit or stand for more than four hours a day, that she could not continuously sit or stand for 60 minutes without a rest period, and that it was difficult for her to sit for more than 30 minutes at a time. At the time of the hearing in 1997, Dr. Helfand had coordinated Green-Younger’s care for over three years, during which time she" }, { "docid": "4237818", "title": "", "text": "Dr. Dachman’s thirty minute sit/stand limitation was not supported by clinical or laboratory findings and is contradicted by other substantial medical evidence in the record; namely, the opinions of two non-examining state agency physicians. Def.’s Mem. at 11-12. A treating physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000) (citing 20 C.F.R. § 404.1527(d)(2); SSR 96-2p). The SSA regulations provide that when evaluating medical opinions about a claimant’s impairment or disability, more weight is given to “the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(d)(4). Moreover, “[gjenerally, we give more weight to opinions from [a claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective findings alone or from reports of individual examinations ...” 20 C.F.R. § 404.1527(d)(2). If, however, a medical opinion is not entitled to controlling weight, it is accorded deference and must be weighed using the factors set out in the regulations. The ALJ is required to give “good reasons in [the] notice of determination or decision for the weight [given to a] treating source’s opinion.” Id.; See also SSR 96-2p. A. Objective Medical Evidence The Court initially notes that the parties do not dispute that Plaintiff suffers from fibromyalgia. (R. 30.) The Seventh Circuit described the disease in Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir.1996), as follows: Marlin Sarchet was denied social security disability benefits, challenged the denial in the district court, lost, appeals. She is 42 years old, with a graduate equivalency degree, but she has not worked since 1978. She claims that in 1990 she became totally" }, { "docid": "22388497", "title": "", "text": "opinion of Mulhauser, who stated that “[tjhere is no such thing as Ecologic Illness,” and rejected the reports and opinions of her treating physicians, Rhea and his associates. Furthermore, Greenspan believes the ALJ erred by rejecting Ecologieal/Environmental Illness (“El”) as a recognized disease. She points out that the Program Operation Manual System (“POMS”) of the Social Security Administration lists El as a potential disability. We read these arguments to mean either that the ALJ applied the wrong legal standard in evaluating the weight of the physician’s testimony or erred because his conclusion were not based upon substantial evidence. A. We have long held that “ordinarily the opinions, diagnoses, and medical evidence of a treating physician who is familiar with the claimant’s injuries, treatments, and responses should be accorded considerable weight in determining disability.” Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.1985). The treating physician’s opinions, however, are far from conclusive. “[T]he ALJ has the sole responsibility for determining the claimant’s disability status.” Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir.1990). Accordingly, when good cause is shown, less weight, little weight, or even no weight may be given to the physician’s testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence. Scott, 770 F.2d at 485. In sum, the ALJ “is entitled to determine the credibility of medical experts as well as lay witnesses and weigh their opinions accordingly.” Id,.; see also 20 C.F.R. § 404.1527(e)(2) (“If any of the evidence in your case record, including any medical opinion^), is inconsistent with other evidence or is internally inconsistent, we will weigh all the other evidence and see whether we can decide whether you are disabled based on the evidence we have.”). A reading of the ALJ’s decision shows that he carefully considered, but ultimately rejected, the treating physicians’ conclusions that Greenspan was disabled. While we might not have accorded “no weight” to the opinions of the treating physicians, the Act empowers the ALJ to analyze the physicians’ testimony." }, { "docid": "9809893", "title": "", "text": "range of sedentary work. Based upon this finding, the ALJ concluded that Downs was not disabled. 1. The Treating Physician Rule A treating source’s opinion of disability is entitled to some extra weight in claims for Social Security disability benefits. The Second Circuit Court of Appeals established the treating physician rule in a long series of eases, including Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.1988) (treating physician’s opinion of disability binding unless contradicted by substantial evidence). However, the Commissioner promulgated new regulations in response to these holdings. Although these regulations altered the treating physician rule, the Second Circuit upheld the regulations’ validity in Schisler v. Sullivan, 3 F.3d 563, 568-569 (2d Cir.1993). The present rule has been described in the following manner: Under 20 C.F.R. § 404.1527(d)(2) (“ § 404.1527(d)(2)”), the medical conclusion of a “treating” physician is “controlling” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” The treating physician’s opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is: (i) binding on the fact-finder unless contradicted by substantial evidence; and (ii) entitled to some extra weight because the treating physician is usually more familiar with a claimant’s medical condition than are other physicians. Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir.1998), (citing Murdaugh v. Secretary of Dep’t of Health and Human Servs., 837 F.2d 99, 101 (2d Cir.1988), and Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.1986)). In cases in which Social Security determines that a treating source opinion is not well-supported, the regulations require the ALJ to accord the physician’s statements some extra weight based upon several factors. § 404.1527(d)(2). The factors cited in the regulations include the length of the treatment relationship, the nature and extent of the relationship, the supportability of the source’s opinion, the consistency with other medical evidence in the record, whether the opinion involves the speciality of the physician, and any other factors that might be relevant. In this case the ALJ ignored treating physician Wolfe’s" } ]

[ { "docid": "7123966", "title": "", "text": "literature in 1950-1952. The correct statement of the situation would be that while the enzyme is as described by Waller stein,, the source and the method of procuring it has been improved by defendant and others. As plaintiff amply describes it “Wallerstein laid the road. The defendant drove over it.” Wallerstein’s own laboratory experiments proved the success of his process. By use of enzymes as a catalyst, he obtained higher yields of crystalline dextrose. The production of objectionable reversion products was minimized. Apparently the only reason defendant did not earlier change from acid hydrolysis was the cost involved and the difficulty in obtaining the enzyme needed. We have considered additional arguments of invalidity made by defendant. Nevertheless we hold that the claims of the patent in suit here in issue are valid. As to infringement, defendant refers to the patent in suit as a paper patent which should be narrowly and strictly construed. However, failure by a company not in the business of converting starch or producing crystalline dextrose, to spend large sums for equipment and possibly new buildings, should not be the basis for describing the patent as a paper patent. See Coltman v. Colgate-Palmolive Peet Co., 104 F.2d 508, 511 (7 Cir., 1939); Aerosol Research Co. v. Scovill Manufacturing Company, 334 F.2d 751, 756 (7 Cir., 1964); Briggs et al. v. M. & J. Diesel Locomotive Filter Corp. et al., 342 F.2d 573, 577 (7 Cir., 1965). It is erroneous to say, as does the District Court’s decision, that defendant’s process does not come within the claims. In our view, defendant’s process reads squarely on the process described in the patent. We think it was also incorrect to say that defendant gets a different result through different means. We think defendant obtains the result which Wallerstein described. The District Court’s opinion states: “Since the Wallerstein patent claims a process for the production of crystalline dextrose in a better manner than the acid conversion then employed, and mentions nothing about the removal of trans-glucosidase from the enzyme employed, the defendant’s process is not that of the Wallerstein patent.” It" } ]

[ { "docid": "16996150", "title": "", "text": "claims 2, 3, 7, 10, 12, 14, 17 and 19 of the patent-in-suit by making, using and selling and causing to be sold and used poultry picking machines illustrated in Plaintiffs’ Exhibit 16. Defendant, William E. Gin-ovan, has infringed each of claims 2, 3, 7, 12, 14, 17 and 19 of Hunt patent-in-suit by using the machine illustrated in Plaintiffs’ Exhibit 16. 4. The license agreements under the Hunt patent-in-suit and Plaintiffs’ Exhibits 9, 10, 10-a, 11, 21, 21-a, and 61 are not in restraint of trade or in violation of the anti-trust laws; and do not constitute or involve any abuse of the patent right, or any attempt to control re-sale prices or to interfere with the exercise of any rights of the purchasers of the patent machines; and are not contrary to the public interest. 5. Plaintiffs do not come into this cause or this Court with unclean hands and the complaint should not be dismissed for unclean hands. 6. Defendants have failed to establish the defense of license or implied license under the patent-in-suit. 7. Defendants have failed to prove their counter-claim and it should be, and hereby is dismissed. 8. Except as to Claim No. 16 of the patent-in-suit, plaintiffs are entitled to the relief prayed for in their complaint. 9. Plaintiffs are entitled to their costs herein on all phases of the case. Counsel may prepare and submit a decree accordingly. The decision of the Court on these issues is printed herein as Appendix A." }, { "docid": "23632142", "title": "", "text": "SIMONS, Circuit Judge. The suit below was for infringement of certain of the claims of each of a group of seven patents, which together are claimed to dominate and control the so-called drum process of building the outer casings of au•tomobile tires. The plaintiff prevailed in many of its contentions as to validity 'and' infringement, but failed in others, and both litigants have appealed; 6917 being the appeal of the defendant Firestone, and 6918 being the cross-appeal of the plaintiff United States Rubber Company. The patents involved, the claims in Suit, and the results below, follow: Hopkinson, No. 1,374,505, April 12, 1921. Claims 2, 9, 15, 16, 18, 23, and 27; all held valid and infringed. Gammeter, No. 1,480,719, January 15,. 1924. Claims 1, 2, 17, 18, and 19; all held valid and infringed. Abbott, No. 1,507,563, September 9, 1924., Apparatus claims 11, 23, and 31 held valid and infringed. Process claims 1, 2, 6, 7, and 32 held invalid. Sloper process patent, No. 1,372,567, March 22, 1921. Claims 2, 3, and 4; held valid but not infringed.’ Sloper apparatus patent, No. 1,487,033, March 18, 1924. Claims 1, 2, 3, 4, 6, 7, 8, and 14; all held valid but not infringed. Lough, No. 1,607,266, November 16, 1926. Claim 3; held valid and infringed. Hopkinson reissue, No. 17,618, March 4, 1930. Claims 13, 14, 15, 16, 17, 18, 19, 21, 24, and 25; all held invalid. The Hopkinson patent, No. 1,374,505, is claimed to be basic in relation to the present method of building automobile tires, the others (save Lough) Being either for improvements therein or for apparatus by which it is now commercially practiced in the industry. Prior to Hopkinson, automobile tire casings had been fashioned by what is called. the core process. The usual and desirable limits of an opinion will not permit a detailed description of this earlier method of tire making. Perhaps it is sufficient to say that in the core process the casing or carcass, consisting of a number of plies of bias-cut fabric impregnated with rubber, a tough rubber tread, an open mesh fabric" }, { "docid": "2962794", "title": "", "text": "plaintiffs Zybach and Trowbridge. This cause was tried to the Court, and the Court entered judgment that claims 8, 9, 10 and 13 of United States Patent No. 2,604,359 are valid and infringed by the defendants’ self-propelled sprinkling irrigation system, that the doctrine of file wrapper estoppel is inapplicable to claims 8, 9, 10 and 13 which claims are entitled to a broad range of construction and equivalents, and that the defendant Enresco, Inc., has induced defendant Yuma Manufacturing Company, Inc., to infringe United States Patent No. 2,604,-359. At the close of the trial it was determined that there was a technical patent misuse by reason of a stipulation in the license agreement providing for the payment of royalties on parts and portions. However, there was a reservation of this issue, and inasmuch as there was a renunciation of the stipulation as of July 1, 1968, it becomes- necessary to finally determine this question of patent misuse so as to decide whether damages predate the purge date. We are here concerned with a self-propelled sprinkling irrigation apparatus for irrigating large sections of land. Such an apparatus or system may be used where the natural rainfall is not sufficient to cause a maximum growth of crops, or when the operator wishes to avoid the labor and time involved in either running water along ditches or shifting stationary pipes provided with sprinkler heads from one position to another until the desired area is covered, or where the land is not sufficiently level for ditch irrigation. It has been found that this apparatus has great practical value and that United States Patent No. 2,604,359 constitutes a pioneer contribution to the art. Both the system described in U. S. Patent No. 2,604,359 and the system of the defendants are designed to extend up to approximately one-quarter mile in length to maintain an elongated water distributing pipe substantially straight as it rotates about its inner end, and to operate unattended for several days or weeks. On July 22, 1952, U. S. Patent No. 2,604,359 was duly and legally issued to plaintiff Zybach for an invention" }, { "docid": "22412322", "title": "", "text": "each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent and in the MC-4C each such combination of elements operates in the same manner and produces the same result as disclosed in the '582 patent. The MC-4C McCulloch helicopter comes within the meaning and within the principle of each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent and infringes said claims. 124. Plaintiff has submitted proofs of infringement of claims 6, 7, 8, 9, 12, 13, 16, and 17 of the '582 patent by the HSL-l Bell helicopter. The general configuration and construction and the parts of the HSL-l helicopter of particular pertinence to the claims referred to above are described and illustrated in plaintiff’s exhibits 296 to 300, 302 to 306, 308, and 310. These exhibits are portions of manuals pertaining to the HSL-l helicopter and these manuals were published by defendant. 125. The HSL-l Bell helicopter incorporates each of the elements of the combination defined in each of claims 6, 7, 8, 9, 12, 13, 16, and 17 of the '582 patent and in the HSL-l each such combination of elements operates in the same manner and produces the same result as disclosed in the '582 patent. The HSL-1 helicopter comes within the meaning and within the principle of each of claims 6, 7, 8, 9, 12, 13, 16, and 17 of the '582 patent, and infringes said claims. 126. The numerous prior patents and publications mentioned by defendant as invalidating the several '582 patent claims in suit do not disclose the various combinations of means providing for flapping or blade swinging transverse the rotative path to accommodate differential flight forces, means providing for bodily shift of each blade as an entirety for cyclic variation of pitch with respect to the hub, a pilot’s control member and control connections coupled with the rotor to provide instinctive control response, control connections flexibly jointed adjacent flapping axis, an autorotatable sustaining rotor," }, { "docid": "21284451", "title": "", "text": "Per Curiam: This case was referred to Trial Commissioner James F. Davis with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on April 22, 1970. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by the third-party defendant, The Plickok Electrical Instrument Co., and defendant, The United States. The case has been submitted to the court on the briefs and oral argument of counsel for plaintiff and the excepting parties. Since the court agrees with the opinion, findings and recommended conclusion of law of the trial commissioner, it hereby adopts the same, as hereinafter set forth, as the basis for its judgment in this case. Therefore, the court concludes that the patent claims in Patent 3,061,788' — claims 2,4, Patent 2,769,905 — claims 1, 5, Patent 2,769,904 — claims 1, 8, Patent 2,853,609 — claims 1, 16, 19, Patent 2,883,619 — claims 1, 6, Patent 2,930,986 — claim 1, Patent 2,826,694 — claim 2, and Patent 2,804,571 — claims 5, 8, are valid and infringed and that plaintiff is entitled to recover reasonable and entire compensation for unauthorized use by defendant of the patented inventions so-claimed. Judgment is entered for plaintiff accordingly with the amount of recovery to be determined pursuant to Bule 131 (c) (2). OPINION OE COMMISSIONER Davis, Commissioner: This is a patent suit under 28 U.S.C. § 1498 to recover “reasonable and entire compensation” for alleged unauthorized use by defendant, the United States, of inventions described and claimed in eight patents owned by plaintiff. Only the issue of liability is before the court; accounting, if any, is deferred to later proceedings. The patents relate to oscilloscopes and their electronic circuitry. Pursuant to notice under Pule 41 (previously Pule 28), three of the Government’s supplier-indemnitors, who furnished the alleged infringing devices, entered the suit as third-party defendants: The Hickok Electrical Instrument Co., Jetronic Industries, Inc., and Lavoie Laboratories, Inc. The third-party defendants participated in the trial. Hickok and Jetronic submitted proposed findings and briefs with respect to" }, { "docid": "14715765", "title": "", "text": "the prior art, and the particular circumstances of the case. The first inquiry as to infringement of such claim is whether there is infringement of the terms of the claim, but this does not end the matter. Infringement is found where application of claim phraseology reads on the accused device and there is real identity of means, operation and result between the accused device and of the device shown in the patent. 12. A patentee is entitled to the broadest range of equivalents consistent with the prior art and with the file wrapper history where his patent is a pioneer in the field, where the invention has had great practical impact on the art, and where the infringer has relied on the patentee’s teachings to derive its own product. 13. Infringement is not avoided by varying the apparatus shown in the disclosure of a patent, whether the variation be an improvement or an impairment. An equivalent is no less an equivalent merely because it was unfamiliar at the time of the invention. 14. File wrapper estoppel applies to an expression in a claim that was inserted and relied upon during prosecution in order to avoid specific prior art. Where the expression was not relied on as the sole distinguishing feature, as evidenced by the fact that another claim was allowed without the expression, file wrapper estoppel does not necessarily apply. 15. Manufacture or use of an apparatus covered by a patent is not any the less an infringement because the apparatus is not sold. 16. A patentee may file suit for patent infringement if he has probable cause for believing that an act of infringement has occurred. Even if there has been no actual infringement he is not liable for damages unless the defendant affirmatively shows that suit was brought without good faith and without probable cause. 17. Claims 4, 14, 16 and 19 of U.S. Patent No. 2,797,149; Claims 10 and 16 of U.S. Patent No. 2,879,141; Claim 8 of U.S. Patent No. 2,865,303 and Claim 14 of U.S. Patent No. 2,935,028 are good and valid in law, are" }, { "docid": "18168293", "title": "", "text": "moving party has the burden of proof on a claim or defense raised in a summary judgment motion, it must show that the undisputed facts establish every element of the claim or defense. To establish laches, the defendant must show 1) unreasonable and inexcusable delay in filing suit and 2) material prejudice resulting from the delay. Jamesbury, 839 F.2d at 1551, 5 USPQ2d at 1785; Hottel Corp. v. Seaman Corp., 833 F.2d 1570, 1572, 4 USPQ2d 1939, 1940 (Fed.Cir.1987). Laches is presumed in patent infringement cases if the delay is longer than six years, but otherwise the defendant has the burden of proving both elements of the defense. Laches bars recovery of damages for any infringement occurring before suit was filed. For the related defense of equitable estoppel, the defendant must show both elements of laches as well as 3) affirmative conduct by the patent owner inducing the belief that he had abandoned the claims against the alleged infringer and 4) detrimental reliance by the alleged in-fringer. Jamesbury, 839 F.2d at 1553, 5 USPQ2d at 1786; Hottel, 833 F.2d at 1573, 4 USPQ2d at 1941. Equitable estoppel bars all relief for patent infringement. The district court should not have granted summary judgment on the laches defense because Brooks did not present undisputed facts showing that Meyers’ delay in filing suit was unreasonable and that Brooks was prejudiced by the delay. Brooks was not entitled to judgment on its defense of equitable estoppel either, not only because it failed to show unreasonable delay and prejudice, but also because a mere verbal charge of infringement, if made, followed by silence was not sufficient affirmative conduct to induce a belief that Meyers had abandoned an infringement claim. In determining laches, the court must consider when the patent owner knew or should have known of the defendant's alleged infringement. Jamesbury, 839 F.2d at 1552, 5 USPQ2d at 1785. But, like infringement, laches does not begin until the patent issues. Bott v. Four Star Corp., 807 F.2d 1567, 1575, 1 USPQ2d 1210, 1216 (Fed.Cir.1986). And where the plaintiff alleges infringement of more than one patent," }, { "docid": "5464312", "title": "", "text": "WL 282742, at *3 (N.D.Ill. May 18, 1997) (citations omitted). Here there is no question that all Defendants seek or have obtained FDA approval to sell the proposed ANDA product within the near future; therefore, the actual controversy requirement is met and the declaratory judgment action will be entertained. Id. Astra is entitled to declaratory judgment concerning claim 14 of the ’505 patent and claim 12 of the ’230 patent. C. Cheminor Plaintiffs assert that Cheminor’s ome-prazole formulations will infringe claims 1, 5, 9, 10, and 14 of the ’505 patent and claims 1, 6, and 11-13 of the ’230 patent either literally or under the doctrine of equivalents. Cheminor’s ANDA describes three proposed omeprazole products — 10 mg, 20 mg, and 40 mg omeprazole capsule shells containing enteric-coated pellets (hereinafter sometimes referred to as “Cheminor’s ANDA products” or “Chemi-nor’s products”). All the pellets that fill the 10 mg, 20 mg, and 40 mg capsules are the same — they have the same composition. (Prasad Tr. 2986:1-5, 2953:8-25.) The only difference is the number of pellets contained in each type of capsule. Cheminor’s omeprazole formulations and the detailed manufacturing process for making Cheminor’s products is described in Cheminor’s ANDA. (Langer Tr. 378:17-379:15; P446 at OME3321-26, OME3331; P445 at OME60711; see also P446 at OME3338.) Cheminor’s products are “oral pharmaceutical preparations” or formulations as those terms are used in claim 1 of both the ’505 and ’230 patents. WTien this litigation began, Che-minor did not have a good faith basis for asserting that its product did not infringe claims 1, 4, 5, 8, 10, and 14 of the ’505 patent and at least claim 1 of the ’230 patent. (Cheminor by Koprowski 30(b)(6) Dep. Tr. 51:4-6, 12-16, 19-23, 52:4-12, 58:4-7, 13.) Even though the facts necessary to assess infringement, including knowledge of its own product and the patent claims, specification, and file history, were available to Cheminor long ago, Che-minor has only now raised two infringement issues: (1) whether the meglumine in its products is an ARC or an alkaline buffering compound as required by the claims, and (2) whether its" }, { "docid": "13950345", "title": "", "text": "have been used by defendant without license from the patent owner, and that plaintiffs are entitled to recover for such use. Judgment is entered to that effect with the amount of recovery to be determined pursuant to Eule 47 (c) (2). OpiNiok op Commissioner Lane, Commissioner: This is a patent suit under Title 28 U.S.C. § 1498, in which plaintiffs seek to recover reasonable and entire compensation for the unauthorized use or manufacture by or for the defendant of patented inventions. Plaintiffs allege infringement of claims 1-6, 8, 9, and 14-16 of U.S. Letters Patent No. 2,580,482 entitled “Tumbuckle Lock” which issued to the plaintiffs Louis C. Stukenborg and Harold V. Utterback January 1, 1952, on an application filed July 12, 1945. Plaintiffs further allege infringement of claims 5, 6, and 7 of U.S. Letters Patent No. 2,848,408 entitled “Lock for Tumbuckle” issued to Stukenborg July 15, 1958, on an application filed June 27, 1956. Plaintiffs Stukenborg and Utterback are the owners of said patents. Plaintiff, Associated Aircraft Industries, Inc., is the exclusive licensee with the right to grant sub-licenses under said patents. The parties have agreed to defer trial of any accounting issues until the issues of patent infringement and patent validity are decided. It is found that claims 3 and 5 of the '482 patent are invalid and that claims 1, 2, 4, 6, 8, 9, and 14-16 of the '482 patent are valid but not infringed. It is further found that claims 5, 6, and 7 of the '408 patent are valid and infringed. Both patents in suit describe and claim improved tum-buckle assemblies. A tumbuckle assembly is an adjustable connector generally used to interconnect cables, wires, or rods so that the length and tension of the cables, wires, or rods may be readily adjusted. A tumbuckle assembly of the type involved in this suit is illustrated in the accompanying drawing. A conventional tumbuckle assembly is comprised of a cylindrical barrel or sleeve having terminal rods threaded in each end. Since World War I, tumbuckle assemblies have been used extensively in aircraft primary and secondary flight control" }, { "docid": "562594", "title": "", "text": "made by this second so-called seaming apparatus (accused machine) and approximately 15 to 20 per cent made by the first machine and the balance made out of seamless tubing.” Later, after conferences with defendant’s representatives and with experts in the welding field, plaintiff notified defendant that its second or accused machine was infringing the patents in suit. Defendant denied infringement. On May 10, 1944, plaintiff filed complaint, alleging infringement of the method and apparatus claims of the patents in suit. It asked for an injunction against further infringement, an accounting of defendant’s profits, payment of plaintiff’s damages occasioned by the alleged infringement, and for assessment of costs. However, during the trial plaintiff limited- its charge of infringement to claims 1, 2, and 3 of patent No. 1,810,112; claims 3, 5, 7, and 8 of patent No. 1,948,801; claims 26 and 30 of patent No. 2,061,671; and claims 1, 4, 7, 8, 16, and 18 of patent No. 2,139,771. Defendant answered, denying infringement and alleging that by the agreement of February 15, 1939, plaintiff had granted it a license under the patents in suit to use the first machine for atomic-hydrogen welding for the full terms of the patents; that plaintiff had released it from all claims for infringement of said patents; and that its second or accused machine was free and beyond the scope of patent in suit No. 2,-061,671 and of the apparatus claims of patents in suit-Nos. 1,948,801 and 2,139,771, because it had purchased the welding head or unit embodied in this machine from General Electric subsequent to the 1939 agreement which gave General Electric a fully-paid, nonexclusive license to make, use and sell apparatus embodying the inventions claimed in said patent No. 2,061,671 except claim 10 thereof. Defendant also alleged that General Electric had an implied license under the apparatus claims of patents Nos. 1,948,801 and 2,139,771 to make, use, and sell the apparatus disclosed in patent in suit No. 2,061,671 except claim 10 thereof. In its answer defendant alleged that its second or accused machine was constructed in accordance with the disclosure and claims of Catlett" }, { "docid": "15765001", "title": "", "text": "apparatus in disregard of said notice. 7. The method and apparatus defined in said claims of the Ashbaugh patent are not anticipated by the prior art. 8. The claims of the Ashbaugh patent in suit disclose a new and useful discovery by Ashbaugh, and each of the claims in suit is infringed by the process and apparatus employed by the plaintiff as described in said stipulation No. 5. 9. Westinghouse has made extensive use of the invention, beginning in 193S, with great savings as compared with its own and the usual prior practice of shipping refrigerator systems in crates. Conclusion of Law: Defendant’s patent has been infringed by plaintiff, and defendant is entitled to proper judgment upon its counter-claim against plaintiff. Roberts Patent 2,188,303 Findings of Fact: 1. The Roberts Patent 2,188,303, claims 1, 4 and 5 of which are in suit, relates to a method of testing large numbers of refrigerating systems on a mass production basis by the use of a cold test room in which the temperature and humidity are accurately controlled and through which the systems' are moved, while operating, on a timed conveyer with the evaporators and condensing units of the systems exposed to the conditions in the room, the operating characteristics of the respective sysiems, such as the position of the frost line in the systems, being ascertained after establishment by lapse of time of a uniform test condition, and compared with predetermined standards. The position of the frost line under such conditions is an accurate indication of the total refrigerant charge in the system, and not a mere indication of the level of the liquid refrigerant in the evaporator. 2. The term “substantially” used in claims 1 and 5 of the Roberts patent does not render these claims indefinite. 3. The term “lapse of time”, in claims 1 and 5, and the terms “predetermined speed”, “predetermined path”, “predetermined characteristics”, “relatively early” and “relatively later”, in claim 4, do not render the claims indefinite because it is apparent from the context and from the specification and drawings what the terms mean. 4. The claims" }, { "docid": "15764986", "title": "", "text": "is questioned by plaintiff,-are shown and described in the drawings and specification, tfiese being the members 33 shown in Fig. 1 of the drawings and described in lines 46-50 on page 1 of the specification. 4. The claim in suit of said Yoxsimer patent is sufficiently definite, since the word “substantially” (one of the expressions questioned by the plaintiff) is commonly used in patent claims to prevent avoidance of literal infringement by minor changes, and the meaning of the words “widely” and “minimize” (the other questioned expressions) is clear from the context and the disclosure on which they are based. 5. Said claim of the Yoxsimer patent distinguishes from the claims of Forsthoefel patent 2,205,780 by inclusion of material elements which are not in the latter claims and hence there is no double patenting as between these two patents. 6. The subject matter disclosed in the specification and drawings and covered by the claim in suit of said Yoxsimer patent required for its production the exercise of inventive skill. 7. The cabinet construction defined in said claim 3 of said Yoxsimer patent is not anticipated by the prior art relied upon by the plaintiff. 8. Said claim discloses a new and useful discovery by Yoxsimer and is infringed by the construction employed by the plaintiff in its refrigerator Models S-641 and SE-641. 9. Refrigerator cabinets employing the invention of said Yoxsimer patent have been manufactured and sold in large numbers by the defendant, and the Philco Corporation is a licensee under the patent. Conclusions of Law: 1. Plaintiff’s refrigerators S-641 and SE-641 infringe the patent in suit. 2. Defendant is entitled to judgment upon its counterclaim. Quimper Patent No. 2,254,780 Findings of Fact: 1. The validity of claims, 1, 2 and 6, as well as their infringement by Crosley models S-641 and SE-641, are in issue. 2. This patent is for insulating corner strips supporting the inner shell from the outer shell to reduce the weight of the cabinet. 3. Westinghouse does not use this patent, its corner strips being of metal, which have 150 times the heat conductivity of" }, { "docid": "11822160", "title": "", "text": "DUFFY, Senior Circuit Judge. The complaint herein alleges infringement of four United States patents owned by plaintiff. Each defendant counterclaims for a declaratory judgment of invalidity and non-infringement. Only two of the patents are involved in this appeal, viz., Skeggs United States Patent No. 2.797.149 and Skeggs United States Patent No. 2,879,141. On this appeal, appellants contest only the trial court’s holding that 1) Claims 4, 14, 16 and 19 of Skeggs Patent No. 2.797.149 (the '149 patent) are infringed; 2) Claim 10 of Skeggs Patent No. 2,879,141 (the ’141 patent) is infringed; and 3) Claim 16 of the ’141 patent is valid. The patents in suit involve apparatus that analyzes, on a continuous basis, samples of various liquids to determine the quantity of certain constituents in these liquids. To illustrate, the apparatus is useful in determining the amount of sugar or urea (crystalloids) present in human blood. Skeggs United States Patent ’149 contains apparatus claims 4, 14 and 16, and method claim 19 directed to an entire system for quantitative automatic analysis of crystalloids using flowing streams. In Skeggs United States Patent ’141, Claim 10 is directed to a sampling device for feeding a series of liquid samples successively to the apparatus disclosed in the ’149 patent. Claim 16 of that patent is directed to apparatus for treating a liquid for processing which employs means for injecting air into a stream of the liquid to divide the stream into alternate segments of liquid separated from each other by intervening segments of air. Claim 16 is sometimes referred to as “the Air Bubble claim.” The inventions represented by the four patents in suit have been embodied in commercial apparatus sold by plaintiff as the “AutoAnalyzer” analytical equipment. Defendants Coleman and American Hospital Supply Corporation are charged to have infringed plaintiff’s patents by reason of the manufacture and use of an analytical apparatus called the “Coleman Chem-Matic.” Pertinent to the question of infringement, there is substantial evidence in the record to support Finding of Fact 33 which reads: “Coleman surreptitiously bought an AutoAnalyzer through one of its consultants who made the" }, { "docid": "15765000", "title": "", "text": "the Ashbaugh invention were fully disclosed in the original application for the Ashbaugh patent in suit and were supported by oath of the inventor. No “new matter” was introduced during the prosecution of the Ashbaugh application, such changes as were made being fully consistent with the original application and oath as filed in the Patent Office. 6. The subject matter disclosed in the specifications and drawings and covered by the claims of the Ashbaugh patent in suit required for its production the exercise of inventive skill. The evidence shows that when Westinghouse began using the patented method and apparatus it required considerable negotiation to get approval of the Railroads and a classification by the “Consolidated Classification Committee” which would permit shipping in accordance with the teachings of the patent, and that before Crosley began using the invention it wrote to Westinghouse for detailed information about how to practice it, which information was furnished by Westinghouse, together with notice of the existence of the Ashbaugh patent. Crosley later began the use of the Ashbaugh method and apparatus in disregard of said notice. 7. The method and apparatus defined in said claims of the Ashbaugh patent are not anticipated by the prior art. 8. The claims of the Ashbaugh patent in suit disclose a new and useful discovery by Ashbaugh, and each of the claims in suit is infringed by the process and apparatus employed by the plaintiff as described in said stipulation No. 5. 9. Westinghouse has made extensive use of the invention, beginning in 193S, with great savings as compared with its own and the usual prior practice of shipping refrigerator systems in crates. Conclusion of Law: Defendant’s patent has been infringed by plaintiff, and defendant is entitled to proper judgment upon its counter-claim against plaintiff. Roberts Patent 2,188,303 Findings of Fact: 1. The Roberts Patent 2,188,303, claims 1, 4 and 5 of which are in suit, relates to a method of testing large numbers of refrigerating systems on a mass production basis by the use of a cold test room in which the temperature and humidity are accurately controlled" }, { "docid": "2975977", "title": "", "text": "reasons: (a) the difference between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the lock art. (b) the alleged invention described in the patent was known or used by others in this country before the invention thereof by the applicants for patent. 5. Letters Patent No. 3,190,091 are not infringed by defendants’ 6K7A9 lock set. 6. Letters Patent No. 3,048,996 are entitled to a presumption of validity; and the defendants having failed to overcome said presumption, the Patent No. 3,048,996 is declared valid. 7. Since no evidence was offered to show a date of conception or a date of reduction to practice of the invention claimed in Letters Patent No. 3,048,996 prior to September 19, 1960, its filing date, the date of invention is deemed to be September 19, 1960. 8. Letters Patent No. 3,048,996 are not infringed by defendants’ 6K7A9 lock set, however. 9. Defendants are entitled to judgment declaring that Letters Patent No. 3.190.091 are invalid and void. 10. Defendants are not entitled to recover from plaintiff reasonable attorneys’ fees incurred in the defense of this action and prosecution of the counterclaim. 11. That the complaint be dismissed. 12. Defendants are awarded their costs and disbursements with costs against plaintiffs. . Patent No. Patentee Date 2,007,350 Schlage July 9, 1935 1,575,092 Best March 2, 1926 2,294,213 Schlage Aug. 25, 1942 2,677,953 Msler May 11, 1954 3,077,100 Gerlach Feb. 12, 1963 2,694,919 Fisler Nov. 23, 1954 . Patent No. Patentee Date 1,755,434 Ellingson April 22, 1930 2,226,499 Dedin Dec. 24, 1940 2,645,927 McConnell July 21, 1953 2,713,257 McConnell July 19, 1955 2,825,220 Glass March 4, 1958 . 35 U.S.C. § 101. . 35 U.S.C. § 102(a). A person shall be entitled to a patent unless — (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant" }, { "docid": "22412320", "title": "", "text": "the combination defined in each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent, and in the HUP-1 each such combination of elements operates in the same manner and produces the same result as disclosed in the '582 patent. The HUP-1 Vertol helicopter comes within the meaning and within the principle of each of claims 1, 2, 3, 4, 5, 7, 8, 9,12,13,16,17,18, 19,20, and 21 of the '582 patent, and infringes said claims. 120. Plaintiff has submitted proofs of infringement of claims 1, 2, 3, 4, 5, 7, 8, 9,12,13,16,17,18,19, 20, and 21 of the '582 patent by the H-21B Vertol helicopter. The pertinent mechanism of the H-21B is described and illustrated in plaintiff’s exhibits 247, 248, 249, 250, 251, 253, 254, 255, 256, 257, 258, and 259. These exhibits are portions of manuals pertaining to the H-21B and similar models of defendant’s Vertol helicopters. 121. The H-21B Vertol helicopter incorporates each of the elements of the combination defined in each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent, and in the H-21B each such combination of elements operates in the same manner and produces the same result as disclosed in the '582 patent. The H-21B Vertol helicopter comes within the meaning and within the principle of each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13,. 16, 17, 18, 19, 20, and 21 of the '582 patent, and thereby infringes said claims. 122. Plaintiff has submitted proofs of infringement of claims 1-5, 7, 8, 9, 12, 13, and 16-21 of the '582 patent by the MC-4C McCulloch helicopter. The pertinent mechanism of defendant’s MC-4C helicopter is described and illustrated in plaintiff’s exhibits 235, 236, 238 to 245, and 291. These exhibits are portions of manuals pertaining to the MC-4C helicopter as manufactured by the McCulloch Motors Corporation and used by defendant. 123. The MC-4C McCulloch helicopter incorporates each of the elements of the combination defined in" }, { "docid": "22412321", "title": "", "text": "each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent, and in the H-21B each such combination of elements operates in the same manner and produces the same result as disclosed in the '582 patent. The H-21B Vertol helicopter comes within the meaning and within the principle of each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13,. 16, 17, 18, 19, 20, and 21 of the '582 patent, and thereby infringes said claims. 122. Plaintiff has submitted proofs of infringement of claims 1-5, 7, 8, 9, 12, 13, and 16-21 of the '582 patent by the MC-4C McCulloch helicopter. The pertinent mechanism of defendant’s MC-4C helicopter is described and illustrated in plaintiff’s exhibits 235, 236, 238 to 245, and 291. These exhibits are portions of manuals pertaining to the MC-4C helicopter as manufactured by the McCulloch Motors Corporation and used by defendant. 123. The MC-4C McCulloch helicopter incorporates each of the elements of the combination defined in each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent and in the MC-4C each such combination of elements operates in the same manner and produces the same result as disclosed in the '582 patent. The MC-4C McCulloch helicopter comes within the meaning and within the principle of each of claims 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 16, 17, 18, 19, 20, and 21 of the '582 patent and infringes said claims. 124. Plaintiff has submitted proofs of infringement of claims 6, 7, 8, 9, 12, 13, 16, and 17 of the '582 patent by the HSL-l Bell helicopter. The general configuration and construction and the parts of the HSL-l helicopter of particular pertinence to the claims referred to above are described and illustrated in plaintiff’s exhibits 296 to 300, 302 to 306, 308, and 310. These exhibits are portions of manuals pertaining to the HSL-l helicopter and these manuals were published by defendant. 125. The HSL-l" }, { "docid": "20142288", "title": "", "text": "doubtful, but on the whole, a sufficient prima facie legal ownership of the patents in suit. (4) The Urschel patent, No. 1,256,491, is invalid because for the function or abstract effect of a machine. (5) Claims 1 and 2 of Urschel patent, No. 1.256.491, are invalid as covering no more than the operation of the machine disclosed in the Sanborn patent, No. 600,554, applied to a purpose or use analogous to the stemming of raisins; that is, the snipping of bean pods. (6) Claim 3 of Ursehel patent, No. 1,256,-491, is not infringed by the defendant’s use of the Buck machine for snipping bean pods. (7) Claims 1 and 7 of Ursehel patent, No. 1.256.492, are not infringed by the making or use of defendant’s machine, because these claims cover a combination of elements including the bars 21 of the Urschel patent, and the only machine made and used by defendant for profit contains no bars 21 or any equivalent thereof. (8) Claims 1, 2, and 3 of Urschel patent, No. 1,336,991, are not infringed by the defendant’s machine. (9) The bill of complaint should be dismissed, with costs to be paid by the plaintiff. Opinion. The plaintiff sues in equity for an injunction and damages, and for accounting of profits, under United States Code, title 35, § 70 (35 USCA § 70)., for alleged infringement by the defendant of three United States letters patent for the snipping of string beans. The patents in suit are No. 1,256,491, for a process for snipping string beans, issued February 12, 1918; No. 1,256,492, for apparatus (or machine) for snipping string beans, issued February 12, 1918; and No. 1.336.991, for improvement on the last-mentioned patent, issued April 13, 1920. The defenses are as follows: (1) Insufficient proof of title in the plaintiff as to each and all of said patents; (2) invalidity of the process patent No. 1,256,491; (3) non-infringement of the apparatus or machine patent, No. 1,256,492; and (4) invalidity and noninfringement of patent, No. 1,336,991. The plaintiff is a New York corporation with principal place of business at Niagara Falls, N." }, { "docid": "11442695", "title": "", "text": "The accused tape reel clamp and handle provided on the SBM type RD-115B/UN recorder-reproducer include every structural element recited in claims 1 and 2 of the '413 patent. The accused clamp and handle are shown in plaintiff’s exhibit 37. These two claims of the '413 patent, found valid in finding 57, have been infringed by the tape reel clamp and handle construction used on the Standard Business Machines type KD-115B/UN recorder-reproducers and plaintiff is entitled to recover reasonable and entire compensation for unauthorized use by defendant. 69. Summarizing findings 58 through 65 relating to infringement issues, claims 1 and 2 of the '413 patent have been found valid and infringed by the tape reel clamp and handle provided on the SBM type RD-115B/UN recorder-reproducer. The claims of the other five patents in suit, having been found invalid, have not been infringed. If one or more of the several claims found to be invalid is determined by the court to be valid, then certain of the accused apparatus, as set out in the foregoing findings, have been infringed. CONCLUSION OK LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that claims 6,15,16, and 18 of patent 2,750,449, claims 1 and 2 of patent 2,826,642, claims 1, 2, 3, 8, 9,11, and 12 of patent 2,743,319, claims 7, 8, and 9 of patent 2,845,495, and claims 1, 3, 4, 5, and 6 of patent 2,915,595 are invalid, and that claims 1 and 2 of patent 2,803,413 are valid and have been infringed, and that plaintiff is entitled to recover, and judgment is entered to that effect. The amount of recovery will be in accordance with the stipulation of the parties (filed March 7, I960, after the commissioner’s recommendation that the amount of recovery be determined under Rule 47(c) (2)), whereby judgment is entered for the plaintiff in the amount of $3,000, as reasonable and entire compensation (including interest) for all unlicensed use and manufacture by or for the defendant of the invention described and claimed in U.S." }, { "docid": "21458285", "title": "", "text": "than one year prior to the date of the application for patent * * * ”. As above stated, the date of application for the Faris patent was March 31, 1955. More than one year prior thereto, and on August 19, 1952, the Foster U. S. Patent No. 2,607,104 (Item 13, D-14) was issued and, consequently, as of the latter date became a printed publication. I find as a fact and conclude as a matter of law that the Foster patent, particularly its Fig. 7, substantially and effectively discloses the claimed invention of the Faris patent. The Foster patent covers specifically a triple ply corrugated fabric, but discloses also that “the two-ply corrugated fabric of Fig. 7 is produced by employing a shrinkable fabric 21 that is similar to either fabric 10 or 11 above described, and by weaving it along the rows 22 to a much stiffer fabric 23 that is similar to the fabric 12.” Column 5, lines 48-52. The Foster patent teaches that the fabric forming the corrugations or puffs in Fig. 7 is to be constructed of saran and the shrinkable factor in line 21 of Fig. 7 is to be polyethylene. Plaintiff claims that Fig. 7 of the Foster patent does not disclose the Faris invention because: (1) It says the Foster patent teaches that the corrugated fabric 23 in Fig. 7 must not shrink. What the patent says on this point is “Since the stiff intermediate fabric 12 is not shrunken by this hot water treatment it will buckle to form the corrugations shown in Fig. 2 which corrugations are anchored to the top sheet 10 along the rows 16 and to the bottom sheet 11 along the rows 17”. Column 5, lines 2 through 7. And in Column 4, lines 42 through 48, “The intermediate fabric 12 is preferably woven entirely of a relatively stiff and resilient, synthetic filament yarn such as saran * * * Saran does not shrink appreciably at temperatures below 212 degrees F.” I think it would not be unfair to say that Foster was speaking in comparative terms" } ]

[ { "docid": "4408361", "title": "", "text": "district court came to the erroneous conclusion that, under New York law, Delta owes its passengers a heightened duty of care — but only during their actual course of travel. See Stagl, 849 F.Supp. at 183. Although this was merely dictum, we wish to emphasize that New York law holds a common carrier \"to the same standard of care as any other alleged tort-feasor: It must exercise ordinary care commensurate with the existing circumstances.” Plagianos v. American Airlines, Inc., 912 F.2d 57, 59 (2d Cir.1990) (per curiam) (internal quotations and citations omitted). And this uniform standard applies as much during travel as it does before or after. . We do not mean to suggest that Mrs. Stagl necessarily had to submit expert evidence in order for her claim to survive summary judgment. Other evidence could have done as well. See Harper & James § 17.1, at 547 (“Except for malpractice cases (against a doctor, dentist, etc.) there is no general rule or policy requiring expert testimony as to the standard of care, and this is true even in the increasingly broad area wherein expert opinion will be received.”). Mr. Fischer's statement was merely one way to raise a triable issue of fact in this case. . This is especially true for common carriers who, as noted above, may be legally obligated to take reasonable precautions to protect their passengers from these types of intervening parties. See Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 516, 526 N.E.2d 4, 8 (1988); Pulka v. Edelman, 40 N.Y.2d 781, 784, 390 N.Y.S.2d 393, 396, 358 N.E.2d 1019, 1022 (1976)." } ]

[ { "docid": "4408329", "title": "", "text": "York cases are controlling, we shall assume that New York law governs this diversity action. In order to establish a prima facie case of negligence under New York law, a claimant must show that: (1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result of that breach. See Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 392, 489 N.E.2d 1294, 1294 (1985). This appeal raises questions that touch upon all three elements, and we shall address each one in turn. A. Delta’s Duty of Reasonable Care The district court ruled that “Delta owed no duty to protect [Mrs. Stagl] from the particular injury involved here.” Stagl, 849 F.Supp. at 183. Relying upon several airport cases involving injuries to passengers that resulted from other passengers’ careless placement of luggage, see Gross v. American Airlines, Inc., 755 F.Supp. 89 (S.D.N.Y.1991); Gray v. America West Airlines, Inc., 209 Cal.App.3d 76, 256 Cal.Rptr. 877 (4th Dist.1989), the district court concluded that Delta had no obligation “to protect against or warn of potential negligent conduct by third persons within the terminal building.” See Stagl, 849 F.Supp. at 184. This was error. There is no question that Delta, as an owner or occupier of the premises, owed a duty to take reasonable steps in maintaining the safety of its baggage retrieval area. See Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868, 872 (1976) (“A landowner must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”) (internal quotations omitted); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 415, 594 N.Y.S.2d 310, 311 (2d Dep’t 1993) (same); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 833, 449 N.E.2d 725, 726 (1983) (“A landowner has a duty to exercise reasonable care under the" }, { "docid": "10853280", "title": "", "text": "the plaintiffs have not shown how equity and good conscience require restitution of their funds. Plaintiffs suggest only that “[i]t would be inequitable” for TD Bank to retain any proceeds “derived” from its conduct. (Am. Compl. ¶ 71.) Legal conclusions and “[threadbare recitals of the elements of a cause of action” do not suffice to state a claim, as “Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1949-50. Drawing all reasonable inferences of in their favor, these conclusory allegations are insufficient to state an unjust enrichment claim. e. Negligence To state a claim of negligence under New York law, plaintiffs must allege (1) a duty owed by the defendant to plaintiffs; (2) breach of that duty; and (3) injuries proximately caused by the breach. See Stagl v. Delta Airlines, 52 F.3d 463, 467 (2d Cir.1995). “In the absence of a duty, as a matter of law, no liability can ensue.” McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir.1997). The scope of a duty owed to a plaintiff is a question of law. See Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (N.Y.1994). New York applies the economic loss doctrine to negligence claims. This doctrine prevents a plaintiff from recovering purely economic losses in a negligence action. See 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 271 A.D.2d 49, 711 N.Y.S.2d 391 (1st Dep’t 2000) (“Finlandia I ”), rev’d on other grounds, 96 N.Y.2d 280, 289, 727 N.Y.S.2d 49, 750 N.E.2d 1097 (N.Y.2001) (“Finlandia II”). A defendant is not liable to a plaintiff for economic loss unless there exists “a special relationship that requires the defendant to protect against the risk of harm to plaintiff.” Finlandia II, 96 N.Y.2d at 289, 727 N.Y.S.2d 49, 750 N.E.2d 1097. Courts apply the doctrine “to prevent the recovery of damages that are inappropriate because they actually lie in the nature of breach of contract as opposed to tort.” Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d" }, { "docid": "7377132", "title": "", "text": "to be ‘exercise[d] ... on an ad hoc basis.’ ” Alfaro, 210 F.3d at 115 (quoting Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir.1995)). “Although juries determine whether and to what extent a particular duty was breached, it is for the courts first to determine whether any duty exists.” Drake III, 2007 WL 776818, at *2 (citing Darby v. Compagnie National Air France, 96 N.Y.2d 343, 347, 728 N.Y.S.2d 731, 753 N.E.2d 160 (2001) (citations omitted)). See also Palka v. Senicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (N.Y.1994) (“the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for judges to make prior to submitting anything to fact-finding or jury consideration” (citations omitted)). The determination of whether a party breached its duty of care may also be decided as a matter of law. Blye v. Manhattan & Bronx Surface Transit Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612 (1st Dept.1987) (“The facts at bar, which are not susceptible to varying interpretations, enable us to determine, as a matter of law, whether a breach of duty of care has occurred.”) (citing Sheehan v. City of New York, 40 N.Y.2d 496, 502, 387 N.Y.S.2d 92, 354 N.E.2d 832 (N.Y.1976); Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 345, 162 N.E. 99 (N.Y.1928); Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 12, 207 N.Y.S.2d 855 (1st Dept 1960)). A finding of negligence “may be based only upon the breach of a duty. If ... the defendant owes no duty to the plaintiff, the action must fail. Although juries determine whether and to what extent a particular duty was breached, it is for the courts first to determine whether any duty exists.” Darby, 96 N.Y.2d at 347, 728 N.Y.S.2d 731, 753 N.E.2d 160 (citations omitted). (2) Analysis In the August 2011 dismissal order, this Court found that Pasternack had failed to demonstrate that MRO Samuels (1) owed Pasternack a duty of care not to misinterpret DOT regulations relating to a “refusal" }, { "docid": "17502669", "title": "", "text": "marks omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once a defendant has carried his burden under Rule 56(c), the plaintiff “may not rely merely on allegations or denials in [his] own pleading,” but must, “by affidavits or as otherwise provided in this rule[,] set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Twin Lab., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). In doing so, a plaintiff “must produce specific facts indicating that a genuine factual issue exists. If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (internal quotation marks and citations omitted). No Duty On The Part Of Wackenhut Has Been Established To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was the proximate cause of his or her injuries. Gordon v. Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745, 745 (1992). The defendant must owe a duty of reasonable care to the particular plaintiff. Absent a duty of care, there can be no breach thereof and no liability. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928); Gordon, 579 N.Y.S.2d at 745. Where the facts concerning the relationship between the parties and the circumstances surrounding the occurrence are in accord, the determination of whether a duty exists is a matter of law. Id. Cf., Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976). Without a present duty of care, responsibility for harm does not shift from one party to another for the effects of unintended harm does not occur. See Strauss v. Belle Realty Co., 65 N.Y.2d 399, 401, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985). The determination of whether a" }, { "docid": "7377115", "title": "", "text": "to the injured person there can be no liability in damages, however careless or foreseeable the harm”)). As the Second Circuit has emphasized, “in New York . '. ‘the judicial power to modify the general rule’ of ordinary care ‘is reserved for very limited situations’ and is not to be ‘exercise[d] ... on an ad hoc basis.’” Alfaro, 210 F.3d at 115 (quoting Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir.1995)). The scope of the duty owed to a plaintiff is a question of law, see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585 [611 N.Y.S.2d 817, 634 N.E.2d 189] (N.Y.1994) (“the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for judges to make prior to submitting anything to fact-finding or jury consideration” (citations omitted)). The determination of whether a party breached its duty of care may also be decided as a matter of law. See Alfaro, 210 F.3d at 116 (“we hold that Wal-Mart’s alleged breach-failing to assist Alfaro in a timely manner-was outside the scope of its duty to Alfaro”); see also Blye v. Manhattan & Bronx Surface Transit Operating Auth., 124 A.D.2d 106, 109 [511 N.Y.S.2d 612] (1st Dept.1987) (“Whether or not in a given case a breach of duty has occurred will depend on the particular facts of the case and is either a question of law or of fact depending on the susceptibility of the facts to varying inferences. The facts at bar, which are not susceptible to varying interpretations, enable us to determine, as a matter of law, whether a breach of duty of care has occurred.” (citing Sheehan v. City of New York. 40 N.Y.2d 496, 502 [387 N.Y.S.2d 92, 354 N.E.2d 832] (N.Y.1976); Palsgraf v. Long Island Railroad Company. 248 N.Y. 339, 345 [162 N.E. 99] (N.Y.1928); Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 12, 207 N.Y.S.2d 855 (1st Dept.1960))). Pasternack, 2011 WL 3478732, at *8. The Court then discussed the Drake trilogy of cases, which analyze the liability of drug testing laboratories and" }, { "docid": "7377131", "title": "", "text": "liability can ensue.’ ” Farash, 574 F.Supp.2d at 367 (quoting McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir.1997)). “A plaintiff must show more than a duty owed to a potentially limitless class of people, but rather a specific duty owed to the plaintiff.” Gen. Star Indem. Co. v. Platinum Indem. Ltd., No. 00 CIV. 4960(LMM)(GWG), 2002 WL 31159106, at *3 (S.D.N.Y. Sept. 27, 2002) (citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (N.Y.2001) (“injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her”); Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 (N.Y.2000) (“[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless or foreseeable the harm”)). As the Second Circuit has emphasized, “in New York ... ‘the judicial power to modify the general rule’ of ordinary care ‘is reserved for very limited situations’ and is not to be ‘exercise[d] ... on an ad hoc basis.’ ” Alfaro, 210 F.3d at 115 (quoting Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir.1995)). “Although juries determine whether and to what extent a particular duty was breached, it is for the courts first to determine whether any duty exists.” Drake III, 2007 WL 776818, at *2 (citing Darby v. Compagnie National Air France, 96 N.Y.2d 343, 347, 728 N.Y.S.2d 731, 753 N.E.2d 160 (2001) (citations omitted)). See also Palka v. Senicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (N.Y.1994) (“the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for judges to make prior to submitting anything to fact-finding or jury consideration” (citations omitted)). The determination of whether a party breached its duty of care may also be decided as a matter of law. Blye v. Manhattan & Bronx Surface Transit Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612 (1st Dept.1987) (“The facts at bar, which" }, { "docid": "17502670", "title": "", "text": "of a duty, a breach of that duty, and that the breach of such duty was the proximate cause of his or her injuries. Gordon v. Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745, 745 (1992). The defendant must owe a duty of reasonable care to the particular plaintiff. Absent a duty of care, there can be no breach thereof and no liability. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928); Gordon, 579 N.Y.S.2d at 745. Where the facts concerning the relationship between the parties and the circumstances surrounding the occurrence are in accord, the determination of whether a duty exists is a matter of law. Id. Cf., Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976). Without a present duty of care, responsibility for harm does not shift from one party to another for the effects of unintended harm does not occur. See Strauss v. Belle Realty Co., 65 N.Y.2d 399, 401, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985). The determination of whether a duty exists is a careful inquiry whereby common sense, science and policy play an important role in determining whether to impute liability for the damage suffered by one onto another. Waters v. N.Y.C. Housing Authority, 69 N.Y.2d 225, 229, 513 N.Y.S.2d 356, 505 N.E.2d 922 (1987). As such, the determination of whether a duty exists is an inquiry for the Court and not the fact finder. Id. While this determination is best left to the Court, there is no precise formula that may be used to determine the existence of a duty of care. See Pulka, 40 N.Y.2d 781 at 782-83, 390 N.Y.S.2d 393, 358 N.E.2d 1019. However, when sifting through the significant socioeconomic facts intertwined with the determination of ‘to whom an individual may owe a duty of care,’ the Court is provided with substantial guidance by way of well settled principles of decisional law. See id. Alutiiq was contracted directly by the U.S. Army to provide security services at West Point. Wackenhut was subcontracted to assist in delivering these services. Alutiiq, and by" }, { "docid": "7377114", "title": "", "text": "v. Cont’l Airlines, Inc., 574 F.Supp.2d 356, 367 (S.D.N.Y.2008) (quoting Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000)). “The existence of a duty is an essential element of a negligence claim because, ‘[i]n the absence of a duty, as a matter of law, no liability can ensue.’ ” Farash, 574 F.Supp.2d at 367 (quoting McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir.1997)). “A plaintiff must show more than a duty owed to a potentially limitless class of people, but rather a specific duty owed to the plaintiff.” Gen. Star Indem. Co. v. Platinum Indem. Ltd., No. 00 CIV. 4960(LMM)(GWG), 2002 WL 31159106, at *3 (S.D.N.Y. Sept. 27, 2002) (citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 [727 N.Y.S.2d 7, 750 N.E.2d 1055] (N.Y.2001) (“injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her”); Lauer v. City of New York. 95 N.Y.2d 95,100 [711 N.Y.S.2d 112, 733 N.E.2d 184] (N.Y. 2000) (“[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless or foreseeable the harm”)). As the Second Circuit has emphasized, “in New York . '. ‘the judicial power to modify the general rule’ of ordinary care ‘is reserved for very limited situations’ and is not to be ‘exercise[d] ... on an ad hoc basis.’” Alfaro, 210 F.3d at 115 (quoting Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir.1995)). The scope of the duty owed to a plaintiff is a question of law, see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585 [611 N.Y.S.2d 817, 634 N.E.2d 189] (N.Y.1994) (“the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for judges to make prior to submitting anything to fact-finding or jury consideration” (citations omitted)). The determination of whether a party breached its duty of care may also be decided as a matter of law. See Alfaro, 210 F.3d at 116 (“we hold that Wal-Mart’s alleged breach-failing to assist Alfaro" }, { "docid": "12991415", "title": "", "text": "consumers of their drugs; (4) as a manufacturer of prescription drugs, Amgen is in a better position to protect against the risk of harm to users of the drugs by packaging them in tamper-resistant materials and warning those in the distribution chain to be on the alert for altered or tampered products and the dangers of the “gray market;” and (5) holding Amgen liable would not create a new “channel” of liability, since a manufacturer has a duty to take reasonable steps to make tampering with its product more difficult. In order- to prevail on a negligence claim under New York law, a plaintiff must establish (1) that the defendant owed him or her a duty of care; (2) that the defendant breached that duty; and (3) that the defendant’s breach was the proximate cause of the plaintiffs injuries. See, Johnson v. Bryco Arms, 304 F.Supp.2d 383, 394 (E.D.N.Y.2004)(citing Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531 [1981]). In New York, the existence of a duty of care is a “legal, policy-laden declaration reserved for judges.” In re September 11 Litigation, 280 F.Supp.2d 279, 290 (S.D.N.Y.2003)(citing Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994]). The plaintiff must establish not only that a defendant owed a general duty of care to society as a whole, but also that the defendant owed a specific duty running to the particular plaintiff. See, In re September 11 Litigation, 280 F.Sugp.2d at 290; Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 750 N.E.2d 1055, 727 N.Y.S.2d 7 (2001). In order to determine the existence of a duty in New York, the court should consider and balance the following five factors: (1) “the reasonable expectations of the parties and society generally; [2] the proliferation of claims; [3] the likelihood of unlimited or insurer-like liability; [4] disproportionate risk and reparation allocation; and [5] public policies affecting the expansion or limitation of new channels of liability.” Palka, 83 N.Y.2d at 586, 611 N.Y.S.2d 817, 634 N.E.2d 189; see also 532" }, { "docid": "17645815", "title": "", "text": "negligence.’ ” Lippman v. Island Helicopter Corp., 248 A.D.2d 596, 597, 670 N.Y.S.2d 529 (2d Dep’t 1998) (quoting Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987)). A defendant is not liable in negligence unless it has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff. Lippman, 248 A.D.2d at 597, 670 N.Y.S.2d 529; see also Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002). The existence of a duty of care is usually a question of law for the court. Palka v. Servicemaster Mgmt. Serv. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994); Kazanoff v. United States, 945 F.2d 32, 36 (2d Cir.1991). Once the court has determined the existence of a duty of care, it is then the factfinder’s job to determine whether the duty was breached and, if so, whether the breach was the proximate cause of plaintiffs injury. Palka, 83 N.Y.2d at 585, 611 N.Y.S.2d 817, 634 N.E.2d 189; Lombard v. Booz-Allen & Hamilton, 280 F.3d 209, 215-16 (2d Cir.2002). To prevail, Gonzales must show that NEMF owed a duty of care specifically to him because “without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm.” Hamilton v. Beretta U.S.A Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001). Hence, the question is whether NEMF, while under contract to deliver display racks to the Hospital, owed Gonzales — an employee of the Hospital who chose to move the storage racks himself — a duty of reasonable care. 2. Application I conclude that NEMF did not owe a duty of care to Gonzalez. Even assuming NEMF had a contractual obligation to the Hospital to deliver the racks inside, NEMF did not have a duty to Gonzalez to try to save him from injuring himself. Caballero undertook no duty to protect Gonzalez; his refusal to help Gonzalez created no such duty and therefore he did not" }, { "docid": "14556943", "title": "", "text": "reasonable inferences that the jury might have drawn in his favor from the evidence, Wal-Mart is nevertheless entitled to judgment as a matter of law. See, e.g., This Is Me, Inc., 157 F.3d at 142; Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir.1997). Under New York law, which applies to this case, a plaintiff must establish three elements to prevail on a negligence claim: \"(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.\" Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981). The existence of a duty is thus a sine qua non of a negligence claim: \"In the absence of a duty, as a matter of law, no liability can ensue.\" McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir.1997) (internal quotation marks omitted); see Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985) (\"A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff.\"). The question of the existence and scope of an alleged tortfeasor's duty \"is, in the first instance, a legal issue for the court to resolve.\" Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229, 513 N.Y.S.2d 356, 505 N.E.2d 922 (1987); accord Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994). Identifying the scope of an alleged tortfeasor's duty is \"not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility.\" Palka, 83 N.Y.2d at 585, 611 N.Y.S.2d 817, 634 N.E.2d 189. New York courts \"fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.\"" }, { "docid": "4408355", "title": "", "text": "area in a reasonably safe condition, and because we conclude that there exist issues of fact both as to whether Delta sufficiently discharged that duty and whether Delta’s conduct was the proximate cause of Mrs. Stagl’s injuries, we vacate the district court’s entry of summary judgment on Delta’s behalf. Furthermore, we reverse the district court’s denial of Mrs. Stagl’s cross-motion to compel additional discovery, and we remand this ease for further proceedings consistent with this opinion. . In addition to the traditional landowner's duty, we note that New York law imposes a duty of reasonable care on Delta, as a common carrier, “to protect its passengers from other travelers.” Pulka v. Edelman, 40 N.Y.2d 781, 784, 390 N.Y.S.2d 393, 396, 358 N.E.2d 1019, 1022 (1976). \"This duty may obviously be implied from the contract of carriage and stems from control of the carrier.\" Id.; see also Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 516, 526 N.E.2d 4, 8 (1988) (listing common carrier/passenger relationship among \"special circumstances in which there is sufficient authority and ability to control conduct of third persons that [courts] have identified a duty to do so\"); Christopher v. I.B.I. Security Serv., Inc., 183 A.D.2d 615, 615-16, 584 N.Y.S.2d 34, 35 (1st Dep’t 1992) (common carri er/passenger relationship imposes \"a duty to control the conduct of third persons to prevent them from causing injury to others”). In the context of a case similar to the present one, the Fifth Circuit has provided a useful formulation of this other traditional duty: [A] carrier must reasonably take cognizance of the habits, customs and practices followed generally by its passengers insofar as these actions present hazards to its business invitees, and with an awareness of these hazards, it must take reasonably appropriate steps to avoid or minimize the likely harm. Garrett v. American Airlines, Inc., 332 F.2d 939, 942 (5th Cir.1964) (reversing.directed verdict for an airline-defendant where passenger fell backwards over carelessly placed luggage and airline acknowledged its awareness that many travelers place hand bags at their feet while waiting at the gate)." }, { "docid": "14556944", "title": "", "text": "(\"A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff.\"). The question of the existence and scope of an alleged tortfeasor's duty \"is, in the first instance, a legal issue for the court to resolve.\" Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229, 513 N.Y.S.2d 356, 505 N.E.2d 922 (1987); accord Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994). Identifying the scope of an alleged tortfeasor's duty is \"not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility.\" Palka, 83 N.Y.2d at 585, 611 N.Y.S.2d 817, 634 N.E.2d 189. New York courts \"fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.\" Id. at 586, 611 N.Y.S.2d 817, 634 N.E.2d 189; see also Turcotte v. Fell, 68 N.Y.2d 432, 437, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986) (“[T]he determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant’s action or inaction, they also necessitate an examination of [the] plaintiffs reasonable expectations of the care owed him by others.”). In Judge Cardozo’s famous words, “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation.... ” Palsgraf v. Long Island R.R., 248 N.Y. 339, 344, 162 N.E. 99 (1928). In the present case, there is no question that Wal-Mart, as a landowner, owed Alfaro the duty to act “as a reasonable [entity] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d" }, { "docid": "4408336", "title": "", "text": "Here, of course, Mrs. Stagl was injured in Delta’s own baggage terminal, over which Delta had full dominion and control. Under these circumstances, we think that New York law would apply the traditional landowner’s duty of reasonable care to Delta. As the occupier of these premises, Delta was required to take all reasonable measures to ensure that Mrs. Stagl’s trip to the baggage carousel was a safe one. See Elston v. FCO Auto Racing, Inc., 161 A.D.2d 561, 562, 555 N.Y.S.2d 394, 395 (2d Dep’t 1990). In the present case, the district judge refused to impose an obligation upon Delta to safeguard passengers against the foreseeable risks created by its concentration of allegedly unruly travelers around a congested baggage carousel. In the district court’s opinion, such a duty would “offer little if any real public benefit, and yet would impose upon the airline burdensome and costly obligations.” Stagl, 849 F.Supp. at 185. Although we appreciate that, under New York law, the “existence and scope of an alleged tortfeasor’s duty is usually a policy-laden declaration reserved for Judges” that, in part, weighs competing socioeconomic factors in an attempt to distribute “burdens of loss and reparation on a fair, prudent basis,” Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 820, 634 N.E.2d 189, 192 (1994); see also De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 627-28, 449 N.E.2d 406, 407-08 (1983), we also note that New York courts do not exercise this authority on an ad hoc basis. To the contrary, the judicial power to modify the general rule that [wjhenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger, Havas v. Victory Paper Stock Co., 49 N.Y.2d" }, { "docid": "23527966", "title": "", "text": "resulting from the breach. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed.1984) (hereinafter Prosser & Keeton). Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 899, 386 N.E.2d 807, 811 (1978). “In the absence of a duty, as a matter of law, no liability can ensue.” Gonzalez v. Pius, 138 A.D.2d 453, 454, 525 N.Y.S.2d 868, 869 (2d Dep’t 1988). “Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be.” Prosser & Keeton, § 30 at 164. In tort cases, foreseeability is often confused with duty. Foreseeability “is applicable to determine the scope of duty— only after it has been determined that there is a duty.” Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 396, 358 N.E.2d 1019, 1022 (1976). “The mere fact that a consequence might foreseeably result from an action or condition does not serve to establish a duty owing from a defendant to a plaintiff.” Gonzalez, 138 A.D.2d at 454, 525 N.Y.S.2d at 869. The existence of a duty is a question of law to be decided by the court. New York courts are reluctant to impose a duty of care where there is little expectation that the defendant could prevent the actions of a third party. See Pulka, 40 N.Y.2d at 786, 390 N.Y.S.2d at 397, 358 N.E.2d at 1022 (“While a court might impose a legal duty where none existed before, such an imposition must be exercised with extreme care, for legal duty imposes legal liability.” (citation omitted)). “[C]ommon law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others. This is so ... even where as a practical matter defendant could have exercised such control.” Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 516, 526 N.E.2d 4, 7 (1988) (internal quotation marks omitted). While there are of course many exceptions to" }, { "docid": "20780653", "title": "", "text": "the scope of TOGA’s duty, the court looks to the duty required of others who operate similar terminals and stations — notably, common carriers. See Stagl, 52 F.3d at 467-68 (analyzing duty owed by air carrier, which operated its own terminal, for harm caused to a passenger in that terminal under common carrier rules). “A common carrier ... is one who agrees for a specified compensation to transport such property [or persons] from one place to another for all ... that may see fit to employ him.” Gerhard & Hey v. Cattaraugus Tanning Co., 241 N.Y. 413, 150 N.E. 500, 501 (1926). Although carriers were once obligated to exercise a heightened duty of care, they are now “subject to the same duty of care as any other potential tortfeasor — reasonable care under all of the circumstances of the particular case.” Bethel v. N.Y.C Transit Auth., 92 N.Y.2d 348, 681 N.Y.S.2d 201, 703 N.E.2d 1214, 1218 (1998) A common carrier has an obligation “to conserve the safety, convenience and comfort of its passengers.” Garricott v. N.Y. State Rys., 223 N.Y. 9, 119 N.E. 94, 95 (1918). Under [c]ommon law principles, the duty of care owed by a common carrier was not limited to the time in which the passenger was actually on board the carrier, and extended to the time spent by the passenger in the carrier’s terminal. Furthermore, ‘the duty of a carrier to keep in a safe condition all portions of its platforms and the approaches leading thereto to which the public is reasonably likely to go is extended to impose a similar duty upon a carrier using the station facilities or approaches of another for its own passengers. So imperative is the duty of a carrier to provide a safe means of access to and exit from its terminal grounds that such duty, it is generally held, cannot be delegated to another....’ 7 New York Jurisprudence, Carriers § 333 at 291-92. Day v. Trans World Airlines, Inc., 393 F.Supp. 217, 223 (S.D.N.Y.1975), aff'd 528 F.2d 31 (2d Cir.1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50" }, { "docid": "10853281", "title": "", "text": "The scope of a duty owed to a plaintiff is a question of law. See Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (N.Y.1994). New York applies the economic loss doctrine to negligence claims. This doctrine prevents a plaintiff from recovering purely economic losses in a negligence action. See 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 271 A.D.2d 49, 711 N.Y.S.2d 391 (1st Dep’t 2000) (“Finlandia I ”), rev’d on other grounds, 96 N.Y.2d 280, 289, 727 N.Y.S.2d 49, 750 N.E.2d 1097 (N.Y.2001) (“Finlandia II”). A defendant is not liable to a plaintiff for economic loss unless there exists “a special relationship that requires the defendant to protect against the risk of harm to plaintiff.” Finlandia II, 96 N.Y.2d at 289, 727 N.Y.S.2d 49, 750 N.E.2d 1097. Courts apply the doctrine “to prevent the recovery of damages that are inappropriate because they actually lie in the nature of breach of contract as opposed to tort.” Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 16 (2d Cir.2000). The plaintiffs have failed to identify an actionable duty owed by TD Bank. Where a statute does not imply a private right of action for money damages, the plaintiff may not restate the identical claim under a negligence theory. Uhr, 94 N.Y.2d at 42, 698 N.Y.S.2d 609, 720 N.E.2d 886 (holding that statute did not imply private right of action and affirming dismissal of common-law negligence claim based on same conduct). This Court has already concluded that EIPA does not create a private right of action for money damages by a judgment debtor against a bank. Plaintiffs allege that TD Bank “owed Class Members a duty” to satisfy its obligations under EIPA, but have not identified any duty owed by TD Bank apart from its obligations under EIPA. (Am. Compl. ¶¶ 74-77.) Accordingly, their negligence claim must be dismissed. See Sabol, 93 N.Y.2d at 726, 695 N.Y.S.2d 730, 717 N.E.2d 1067 (concluding “that no viable common-law claim ha[d] been pleaded” where plaintiffs “d[id] not identify any common-law duties ... as distinguished" }, { "docid": "17645814", "title": "", "text": "a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007). The question is whether the pleading alleges “ ‘enough facts to state a claim for relief that is plausible on its face.’ ” Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.2007) (quoting Bell Atl. Corp., 127 S.Ct. at 1974). B. The Merits 1. Applicable Law A plaintiff bringing a negligence claim under New York law to recover for personal injuries must show that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached that duty; and (3) the breach proximately caused the plaintiffs injuries. Williams v. Utica College of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (internal citations omitted); Labajo v. Best Buy Stores, L.P., 478 F.Supp.2d 523, 531 (S.D.N.Y.2007). Here, the first element is the key. “ ‘[A] duty of reasonable care owed by the tort-feasor to the plaintiff is elemental to any recovery in negligence.’ ” Lippman v. Island Helicopter Corp., 248 A.D.2d 596, 597, 670 N.Y.S.2d 529 (2d Dep’t 1998) (quoting Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987)). A defendant is not liable in negligence unless it has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff. Lippman, 248 A.D.2d at 597, 670 N.Y.S.2d 529; see also Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002). The existence of a duty of care is usually a question of law for the court. Palka v. Servicemaster Mgmt. Serv. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994); Kazanoff v. United States, 945 F.2d 32, 36 (2d Cir.1991). Once the court has determined the existence of a duty of care, it is then the factfinder’s job to determine whether the duty was breached and, if so, whether the breach was the proximate cause of plaintiffs injury. Palka, 83 N.Y.2d at 585, 611 N.Y.S.2d 817," }, { "docid": "4408354", "title": "", "text": "judgment). To begin with, an accident record of this sort would be directly germane to establishing the degree of risk generated by Delta’s method of luggage retrieval and hence whether its failure to institute some other means was, in fact, negligent. Cf. Villante v. Dep’t of Corrections, 786 F.2d 516, 521 (2d Cir.1986) (reversing summary judgment for defendant on 42 U.S.C. § 1983 claim because district court failed to order discovery that would have established whether defendant had notice of on-going assaults upon plaintiff). Such information would also be highly relevant to strengthening Mrs. Stagl’s proof of causation. A history of prior passenger collisions at Delta’s baggage carousels would demonstrate beyond peradventure that the conduct of the unidentified man was a foreseeable consequence of Delta’s alleged negligence and, thus, that his behavior did not sever the link between Delta’s actions and Mrs. Stagl’s injury. Accordingly, we reverse the district court’s denial of Mrs. Stagl’s cross-motion to compel additional discovery. CONCLUSION Because we hold that Delta owed Mrs. Stagl a duty to maintain its luggage retrieval area in a reasonably safe condition, and because we conclude that there exist issues of fact both as to whether Delta sufficiently discharged that duty and whether Delta’s conduct was the proximate cause of Mrs. Stagl’s injuries, we vacate the district court’s entry of summary judgment on Delta’s behalf. Furthermore, we reverse the district court’s denial of Mrs. Stagl’s cross-motion to compel additional discovery, and we remand this ease for further proceedings consistent with this opinion. . In addition to the traditional landowner's duty, we note that New York law imposes a duty of reasonable care on Delta, as a common carrier, “to protect its passengers from other travelers.” Pulka v. Edelman, 40 N.Y.2d 781, 784, 390 N.Y.S.2d 393, 396, 358 N.E.2d 1019, 1022 (1976). \"This duty may obviously be implied from the contract of carriage and stems from control of the carrier.\" Id.; see also Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 516, 526 N.E.2d 4, 8 (1988) (listing common carrier/passenger relationship among \"special circumstances in" }, { "docid": "20780648", "title": "", "text": "66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294, 1294 (1985); see also Japan Airlines Co. v. Port Authority of New York and New Jersey, 178 F.3d 103, 109 (2d Cir.1999). Summary judgment in a negligence claim is available “[w]here proof of any essential element falls short.” Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, 873 (1976). While the issue of due care is almost always a jury question, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451, 458 n. 8 (1980), duty is a question of law for the judge. Purdy v. Public Adm’r, 72 N.Y.2d 1, 530 N.Y.S.2d 513, 526 N.E.2d 4, 8 (1988), rearg. denied, 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428 (1988) (“The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts.”). See also Stagl, 52 F.3d at 470-71 (analyzing cases). Only in the simplest cases “where only one conclusion may be drawn from the established facts [may] the question of legal cause be decided as a matter of law.” Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527, 528 (1986). 2. Terminal Had a Duty to Plaintiff In operating its terminal, TOGA has duties similar to those of other terminal operators — namely, common carriers. Among these is the duty to ensure timely ingress and egress of passengers using its facilities. a. Duties of Terminals Generally As a general rule, “[w]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 426 N.Y.S.2d 233, 402 N.E.2d 1136," } ]

[ { "docid": "23126333", "title": "", "text": "equity in such property; and (B) such property is not necessary to an effective reorganization. Plaintiff alleges two grounds for relief from the automatic stay, to wit, (1) lack of adequate protection of her interest in the property, and, alternatively, (2) that the defendant-debtor does not have an equity in the property and the property is not necessary to an effective reorganization. It has been found that the defendant has an equity in the subject property of approximately $6,500 and, accordingly, relief from the automatic stay under § 362(d)(2) may not be granted. It is to the question of “adequate protection” under § 362(d)(1) that plaintiff and defendant have directed their attention and which this Court now considers. Although the term is not defined, Bankruptcy Code § 361 sets forth three nonexclusive examples of what may constitute “adequate protection” if secured property is to be used by a debtor, to wit, (1) periodic cash payments equivalent to decrease in value, (2) an additional or replacement lien on other property, or (3) other relief that provides the indubitable equivalent. None of these has been offered. Instead, defendant contends that the equity cushion itself provides protection for plaintiff’s interest in the property. An adequate “cushion” can itself constitute adequate protection with nothing more. 2 Collier on Bankruptcy, § 361.02[3] at p. 361-9 (15th ed. 1979). An “equity cushion” in and of itself may constitute adequate protection within the meaning of § 362(d)(1). In re Rogers Development Corp., supra; In re Pitts, 2 B.R. 476, 5 BCD 1129 (Bkrtcy.C.D.Cal.1979). The valuation process through which an equity cushion is determined, at best, is inexact. In establishing an amount for the cushion, the Court must consider estimates and approximations founded upon opinions and assumptions. As stated in In re Pitts, id. at 478, 5 BCD at 1129: We deal here in likelihoods and probabilities. We do not have techniques or paraphernalia with which to make evalu ations or predictions with the finite exactitude known to the laboratory. We note and pass without discussion the many variables which may ultimately negate and destroy the validity and" } ]

[ { "docid": "17223132", "title": "", "text": "creditor failed to acknowledge that first deed has priority and that value of property was sufficient to satisfy that lien]; In re Breuer, 4 B.R. 499 (B.Ct.S.D.N.Y.1980) [holding there was a sufficient equity cushion for creditor holding first mortgage despite existance of four junior mortgages totalling more than market value of property]. Thus, in determining that adequate protection was not available for the sellers, the bankruptcy court failed to recognize that the sellers’ interest has priority over AKOP’s interest. It also has priority over all of the judgment liens. In the matter before us, the value of the sellers’ lien on the Upland residence is $17,960.06. This includes the amount still owed to Pistole pursuant to the original land sale contract, and $12,460.06 paid to Weyerhauser to stop the foreclosure proceedings. The bankruptcy court found that the value of the residence is $105,000; thus, there is an “equity cushion” to protect the sellers’ interest in the amount of $20,340 or approximately 20% of the total value. A 20% cushion has been held to be an adequate protection for a secured creditor. See In re McGowan, 6 B.R. 241, 243 (B.Ct.E.D.Pa.1980) [holding a 10% cushion is sufficient to be adequate protection]; In re Rogers Development Corp., 2 B.R. 679, 685 (B.Ct.E.D.Virg.1980) [court decided that an equity cushion of approximately 15% to 20% was sufficient adequate protection to the creditor, even though the debtors had no equity in the property.]; In re Breuer, 4 B.R. 499, 501 [creditor protected by equity cushion of $21,000 despite fact that debtor lacked equity in the property.]. This difference in the amount owing to the senior creditors and the market value of the Upland residence forms the estate of the bankrupt and must be preserved for the benefit of all remaining junior creditors pro rata. By attempting to obtain a state court judgment quieting title to the Upland residence, the sellers sought to acquire a property worth $105,000, which greatly exceeds the amount owed to the sellers by the debtors after deducting the existing balance in the Weyerhauser mortgage. The purpose of adequate protection under §" }, { "docid": "22152265", "title": "", "text": "The method offered in § 361(1) (periodic payments) and in § 361(2) (additional or replacement lien) have not been proposed by the Debtors. The third method, which is contained in § 361(3), is a “catch all”, permitting such other means of providing adequate protection “as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property.” Although the Debtors contend that they are providing adequate protection pursuant to § 361(3), the Court does not believe that maintenance of the status quo is “granting such other relief” nor is it the “indubitable equivalent” (emphasis added) required under that subsection. However, it is the opinion of the Court that a debtor may provide adequate protection by an equity cushion since § 361 does not preclude other forms of adequate protection. The District Court in In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861, 865 (N.D.Ohio 1976) found that a bank was “adequately protected” despite the bankruptcy judge’s order allowing the debtor in possession to use and consume accounts receivable, because of the surplus of security over debt. Further an “adequate cushion” can itself constitute adequate protection with nothing more. Collier on Bankruptcy, 15th ed. § 361.02[3] at p. 361-9. Therefore, since an equity cushion can be adequate protection, the amount of the debt and the value of the property must be determined to establish whether an equity cushion in fact exists. The amount of the debt owing to Heritage from the Debtors has been stipulated for purposes of this proceeding by the parties as $548,188.41. However, the fair market value of the Property is in doubt because of the conflicting evidence of the parties as presented by their respective appraisers. Furthermore, conflict exists on which standard of value, i. e. the liquidation value, the full going concern value, or some value in between, is the proper valuation standard for purposes of this proceeding. Turning first to the standard of valuation to be used, the Court notes that there is no clear direction to the Court by statute. Therefore, at this juncture, the legislative history" }, { "docid": "17223129", "title": "", "text": "such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. The bankruptcy court annulled the automatic stay solely on the basis that the sellers’ “interest in and to the subject real estate lacks adequate protection.” The bankruptcy court failed to explain the legal or factual basis for this conclusion. It is true that the bankruptcy court found that the debtors and the estate did not have any “realizable equity” in the Upland residence. The fact that the debtor has no equity in the estate is not sufficient, standing alone, to grant relief from the automatic stay under section 362(d)(1). In re Suter, 10 B.R. 471, 472 (B.Ct.E.D.Penn.1981). The sellers argue that since the first trust deed to Weyerhauser ($66,700) and the second trust deed to AKOP ($123,278) total more than $189,000, which exceeds the value of the residence ($105,000), their interest ($17,960.06) lacked adequate protection. While the term “adequate protection” is not defined in the Code, 11 U.S.C. § 361 sets forth three non-exclusive examples of what may constitute adequate protection: 1) periodic cash payments equivalent to decrease in value, 2) an additional or replacement lien on other property, or 3) other relief that provides the indubitable equivalent. In re Curtis, 9 B.R. 110, 111-112 (B.Ct.E.D.Penn.1981). The Mellors contend that the sellers are adequately protected by an “equity cushion.” Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. In re San Clemente Estates, 5 B.R. 605, 610 (B.Ct.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (B.Ct.S.D.N.Y.1980);" }, { "docid": "19249719", "title": "", "text": "which to service the debt, may appear to some degree in this case, the Court finds that, although they may be considered on issues of adequate protection or confirmation, they do not “rise to the level of egregiousness necessary to conclude that the reorganization process is being perverted in this case”. Little Creek Development Co. v. Common Wealth Mortgage Corp., 779 F.2d 1068, 1073 (5th Cir.1986). The motion to dismiss on the “bad faith” filing question is therefore denied. II. Citicorp also requests relief from the automatic stay or in the alternative, adequate protection. Relief from the stay “for cause” includes the lack of adequate protection of an interest in property under subsection (d)(1). “Adequate protection” may be provided in three nonexclusive alternative forms pursuant to Section 361 of the Code: (1) cash payment or periodic cash payments, (2) additional or replacement lien, or (3) other relief, with the exception of an administrative priority, as will result in the indubitable equivalent of the creditor’s interest. Conquest Offshore has not provided adequate protection to Citicorp in the form of cash payment, and has not provided additional liens as protection. No other evidence was presented by the debtor to show that the indubitable equivalent of Citicorp’s interest is being adequately protected by other means, other than expert testimony from a debtor’s witness which offered the appraised value of the vessels to be in excess of the debt owed to the creditor here. Citicorp offered substantial expert appraisal testimony to contradict that of the debtor. The Court concludes that, on the basis of the weight and credibility of the evidence, as shown below, the expert appraisal testimony of Citicorp witness proved that the value of the secured asset, on today’s market was substantially less than the debt owed. Where it is shown that a creditor is well secured, the “equity cushion” may constitute adequate protection in satisfaction of statutory requirements, and this cushion is considered the classic form of protection for a secured debt. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Cal.1980); In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re" }, { "docid": "17223131", "title": "", "text": "2 Collier on Bankruptcy, § 361.-02[3] at 361-9; (15th ed. 1979). A sufficient equity cushion has been found to exist although not a single mortgage payment had been made. In re Curtis, 9 B.R. at 111. The bankruptcy court’s conclusion that the sellers’ interest lacked adequate protection was apparently based on its finding that “neither the Debtors nor the Estate have any realizable equity” in the residence. Findings of Fact # 14. However, in equating debtors’ “equity” with “adequate protection” for the sellers, the bankruptcy court erroneously included the junior lien of AKOP, Inc. Although the existence of a junior lien may be relevant in determining “equity” under § 362(d)(2), it cannot be considered in determining whether the interest of a senior lienholder is adequately protected. La Jolla Mortgage Fund, 18 B.R. at 289. The claim of a junior lienholder cannot affect the claim of the holder of a perfected senior interest. See In re Wolford Enterprises, Inc., 11 B.R. 571, 574 (B.Ct.S.D.W.Virg.1981) [rejecting contention that defendant lacked equity due to second deed of trust; creditor failed to acknowledge that first deed has priority and that value of property was sufficient to satisfy that lien]; In re Breuer, 4 B.R. 499 (B.Ct.S.D.N.Y.1980) [holding there was a sufficient equity cushion for creditor holding first mortgage despite existance of four junior mortgages totalling more than market value of property]. Thus, in determining that adequate protection was not available for the sellers, the bankruptcy court failed to recognize that the sellers’ interest has priority over AKOP’s interest. It also has priority over all of the judgment liens. In the matter before us, the value of the sellers’ lien on the Upland residence is $17,960.06. This includes the amount still owed to Pistole pursuant to the original land sale contract, and $12,460.06 paid to Weyerhauser to stop the foreclosure proceedings. The bankruptcy court found that the value of the residence is $105,000; thus, there is an “equity cushion” to protect the sellers’ interest in the amount of $20,340 or approximately 20% of the total value. A 20% cushion has been held to be an" }, { "docid": "5676951", "title": "", "text": "75 F.2d 941 (2d Cir. 1935), where it is said at page 942: “It is plain that ‘adequate protection’ must be completely compensatory; ... a creditor . . . wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders unless by a substitute of the most indubitable equivalence.” In re Lake Tahoe Land Co., Inc., supra, at 36. Although the term is not precisely defined, § 361 of the Code sets forth three (3) nonexclusive examples of what may constitute “adequate protection” of an interest in property: (1) periodic cash payments to the extent that the stay results in a decrease in the value of such interest, (2) an additional or replacement lien to the same extent, or, (3) other relief as will result in the realization of the indubitable equivalent of such interest. None of these has been offered. Instead defendant contends that there is a substantial equity cushion which provides adequate protection for plaintiff’s interest in the property. An equity “cushion” in and of itself may constitute adequate protection within the meaning of Section 362(d)(1). 2 Collier on Bankruptcy, 361.02(3) at p. 361-9, (15th Ed. 1979). In re Pitts, 5 B.C.D. 1129, 2 B.R. 476 (Bkrtcy., 1979). In seeking relief from automatic stay, the creditor has the burden of proof on the issue of debtor’s equity in the collateral, but the debtor has the burden on all other issues including adequate protection of the creditor. 11 U.S.C. § 362(g); In re San Clemente Estates, 5 B.R. 605 (Bkrtcy., Cal.1980). In the instant case the total claim of the Bank as of April 27, 1981, amounted to $606,246.48. (See plaintiff’s Exhibit P-1 and N.T. 8). Additionally, the debtor listed liens of other secured creditors in the amount of $24,156.46 in its schedules and statement of affairs dated January 16,1981. The Bank’s expert witness determined the fair market value of the property to be $350,000.00 as of January 31, 1981, based upon a free and clear title and" }, { "docid": "5676952", "title": "", "text": "protection for plaintiff’s interest in the property. An equity “cushion” in and of itself may constitute adequate protection within the meaning of Section 362(d)(1). 2 Collier on Bankruptcy, 361.02(3) at p. 361-9, (15th Ed. 1979). In re Pitts, 5 B.C.D. 1129, 2 B.R. 476 (Bkrtcy., 1979). In seeking relief from automatic stay, the creditor has the burden of proof on the issue of debtor’s equity in the collateral, but the debtor has the burden on all other issues including adequate protection of the creditor. 11 U.S.C. § 362(g); In re San Clemente Estates, 5 B.R. 605 (Bkrtcy., Cal.1980). In the instant case the total claim of the Bank as of April 27, 1981, amounted to $606,246.48. (See plaintiff’s Exhibit P-1 and N.T. 8). Additionally, the debtor listed liens of other secured creditors in the amount of $24,156.46 in its schedules and statement of affairs dated January 16,1981. The Bank’s expert witness determined the fair market value of the property to be $350,000.00 as of January 31, 1981, based upon a free and clear title and assuming that a developer could begin to sell and market the property immediately. The property was considered as a package consisting of three components: the approved subdivided lands; the unsubdivided portion of the property; and the buildings located on the property. (N.T. 33-5) On the other hand, the debtor’s expert valued the property at $1,160,000.00. (N.T. 144). His opinion also considered the value per acre of both the subdivided and the undivided portions, added to a figure for the improvements. It has been held that “adequate protection” for a lender as opposed to a seller, for land, even raw land partially developed by roads, sewer and water, is a leverage of 40-50% of market value. Matter of Lake Tahoe Land Co., Inc., 5 B.R. 34 (Bkrtcy., Nev.1980). In contrast, 17.4% of the fair market value of commercial real property was held to be adequate protection for a secured creditor in In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy., E.D.Va.1980). The court in In re Pitts, supra, found an equity cushion of" }, { "docid": "10178997", "title": "", "text": "at a final hearing, the movants will not sustain their burden and that equity, within the meaning of section 362(d)(2)(A), is likely to exist. Thus, I need not reach the question whether the hotel is needed for the debtor’s reorganization under section 362(d)(2)(B). See Ukrainian Savings and Loan Association v. Trident Corp., 22 B.R. 491, 493 (E.D.Pa.1982). While the movants possess the burden of proof on the issue of equity, the debtor has the burden of proving that the movants are adequately protected for purposes of determining issues raised by section 362(d)(1). 11 U.S.C. § 362(g)(2); accord, e.g., Matter of Schaller, 27 B.R. 959 (W.D.Wisc.1983). For the following reasons, I believe that the debtor is unlikely to sustain its burden at a final hearing. It is the responsibility of the debtor to propose adequate protection for the mov-ants; it is not for the court to impose adequate protection. 2 Collier on Bankruptcy 11360.01[2], at 361-8 (15th ed. 1986). Throughout this proceeding, the debtor has only suggested one method by which the movants may be adequately protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In" }, { "docid": "17223133", "title": "", "text": "adequate protection for a secured creditor. See In re McGowan, 6 B.R. 241, 243 (B.Ct.E.D.Pa.1980) [holding a 10% cushion is sufficient to be adequate protection]; In re Rogers Development Corp., 2 B.R. 679, 685 (B.Ct.E.D.Virg.1980) [court decided that an equity cushion of approximately 15% to 20% was sufficient adequate protection to the creditor, even though the debtors had no equity in the property.]; In re Breuer, 4 B.R. 499, 501 [creditor protected by equity cushion of $21,000 despite fact that debtor lacked equity in the property.]. This difference in the amount owing to the senior creditors and the market value of the Upland residence forms the estate of the bankrupt and must be preserved for the benefit of all remaining junior creditors pro rata. By attempting to obtain a state court judgment quieting title to the Upland residence, the sellers sought to acquire a property worth $105,000, which greatly exceeds the amount owed to the sellers by the debtors after deducting the existing balance in the Weyerhauser mortgage. The purpose of adequate protection under § 361 is to insure that the secured creditor receives in value essentially what he bargained for, not a windfall. See In re Curtis, 9 B.R. at 112. The bankruptcy court’s finding that there was inadequate protection for the sellers’ secured interest was clearly erroneous. The order of the bankruptcy court must be reversed on an additional ground. To support an order granting relief under section 362(d)(2), the evidence must show that the property was not necessary for an effective reorganization. The facts presented show that the Upland residence may be necessary to protect the interests of junior encumbrances, after deducting the amounts to be paid any legally cognizable secured creditors. The bankruptcy court' failed to make any finding on this issue, as required by section 362(d)(2). CONCLUSION The evidence in this record shows that there was adequate protection for the secured interest of the sellers. The bankruptcy court erred as a matter of law in considering the amount owed to junior lien holders in assessing whether the value of the debtors’ estate afforded the secured" }, { "docid": "9572820", "title": "", "text": "this because the evidence showed that debtor had exceeded its operating projections previously given to the court at the initial hearing on cash collateral in September 1986 and indicated that it would likely exceed its operating projections during the first and second quarters of 1987. Downey has not provided me with any evidence that its interest in the assets of debtor is deteriorating or depreciating in value. To debtor’s credit, a contrary scenario is evident. Furthermore, Downey has given me no cause to believe that debt- or will not succeed in its reorganization effort. What is absolutely clear to me is that everybody is better off, Downey included, if debtor can continue to operate as a going concern and reorganize to maximize those intrinsic values which make the whole worth more than the pieces. Accordingly, where there is a successful Chapter 11 case in progress, going concern value is more appropriate than liquidation value and better reflects the reality of the situation. Since the only evidence of going concern value before me is Dr. Vinso’s valuation, I find that the going concern value of debtor, including the Interests, is $23.6 million. Furthermore, since Downey has an interest in the Bank Collateral through the Inter-Creditor Agreement, the total amount of this value is available to determine if Downey is adequately protected. Debtor has not made an offer of adequate protection. Therefore, adequate protection must rest on the interest which Downey has in the assets of debtor. In other words, is there a sufficient “equity cushion” to protect Downey’s interest? An equity cushion is a recognized and accepted form of adequate protection. In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Automtic Voting Machine Corporation, supra at 972. As the court stated in Mellor, Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. [110] at 112. In fact, it has been held that" }, { "docid": "18563957", "title": "", "text": "in the realization by such entity of the indubitable equivalent of such entity’s interest in such property. Id. Developing case law under 361 and 362(b)(1) establishes that a debtor may retain sufficient equity in the property to justify maintaining the status quo during bankruptcy proceedings even though § 361 does not specifically recognize such a form of protection. When the property contains a substantial surplus over the debt, the creditor’s ability to resort to that property in satisfaction of the debt will, by itself, result in the creditor realizing “the indubitable equivalent” of its interest in the property. See In Re Rogers Development Corp., 2 B.R. at 683. Precisely the extent to which the debtor’s equity must exceed the debt, however, defies quantification. Compare Matter of Lake Tahoe Development Corp. 5 B.R. at 37 n. 9 (equity equal to 40 percent to 50 percent of value of partially developed land needed to provide adequate protection) (dicta) with In Re Rogers Development Corp. 2 B.R. at 683 (cushion of approximately 17 percent of partially developed land protects creditor adequately); cf. In Re Pitts, 2 B.R. 476, 478-79 (Bankr.C.D.Cal.1979) (15.4 percent debtor equity in residence adequately protects creditor). Indeed, the notion that an equity cushion should be considered in a vacuum is fundamentally misguided. The proposition that a uniform equity percentage or dollar amount would inevitably supply adequate protection conflicts with the principle of considering the adequacy of protection in light of all the facts surrounding the case and the equitable considerations to which those factors give rise. See In Re Pannell, 12 B.R. 51, 54 (Bankr.E.D.Pa.1981); In Re 5-Leaf Clover Corp., 6 B.R. 463, 466 (Bankr.S.D.W.Va.1980); In Re San Clemente Estates, 5 B.R. 605, 609 (Bankr.S.D.Cal.1980). If properly applied, the concept of an “equity cushion” supplies only one factor in determining whether the creditor’s interest is adequately protected. In Re Pannell, 12 B.R. at 54. In the proceedings below, the Bankruptcy Judge found that the debtor had failed to prove adequate protection. In the September 14th Memorandum, the Bankruptcy Court critically examined Southerton’s contention that its purported equity in the property" }, { "docid": "8384973", "title": "", "text": "borrowing funds from an institutional lender at or above the prime rate of interest, and lending to the public at rates as high as state usury laws will permit. In the period of high prime and low state ceilings, debtors’ profit margin was badly squeezed. . As of the date of the Chapter 11 petition, the principal amount owed was $987,450.81 with accrued interest to that date of $10,803.44. . Section 362(d)(1) provides as follows: On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section ... (1) for cause, including the lack of adequate protection of an interest in property of such party in interest ... . “Adequate protection” is defined in 11 U.S.C. § 361, and may be provided by making “periodic cash payments” to offset a decrease in the value of the creditor’s interest in property, 11 U.S.C. § 361(1); by providing the creditor with an additional or replacement lien to offset such a decrease, 11 U.S.C. § 361(2); or by granting any other relief, with certain exceptions, “as will result in the [creditor’s] realization ... of the indubitable equivalent of [its] interest in property,” 11 U.S.C. § 361(3). . Of course, the Bankruptcy Court’s factual findings must be affirmed unless clearly erroneous. In re Perimeter Park Investment Assoc., Ltd, 616 F.2d 150, 151 (5th Cir.1980); Bankruptcy Rule 8013. The reviewing court may reverse in the presence of some testimony in the record supporting the Bankruptcy Judge’s conclusions only if the court “on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). .Although the presence of an equity cushion is the classic form of adequate protection, Delaware Valley Sav. & Loan Ass’n v. Curtis (In re Curtis), 9 B.R. 110, 112 (Bkrtcy.E.D.Pa.1981), the lack of equity alone should not be determinative on that issue. Some courts have improperly narrowed their focus to the" }, { "docid": "22806963", "title": "", "text": "he introduced the equally vague corollary of “indubitable equivalence.” 75 F.2d at 942. Now “adequate protection” has been established in the Code as the touchstone against which complaints to dissolve or modify the stay must be tested. As mandated by the Code this standard is applied as a matter of right and not as a matter of discretion. See 2 Collier on Bankruptcy, § 361.01 at 361-5 (15th ed.) (“Collier”). Adequate protection must be applied in light of the peculiar facts of each case and upon the equitable considerations arising therefrom. See House Report, supra, at 339. See also 2 Collier, supra, § 361 at 361-6, 361-15. It is not for the Court to devise the method of providing adequate protection, instead it is committed to the debtor to propose the method to be used. House Report, supra, at 338. Here the debtor has simply proposed that the property itself has sufficient value to constitute adequate protection. While this method is not specifically delineated in Section 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. See Matter of Blazon Flexible Flyer Inc., 407 F.Supp. 861, 865 (N.Ohio 1976). This opinion regarding the appropriateness of the “equity cushion” method has already been widely adopted in decisions interpreting Section 361. See In re Rogers Development Corp., supra, 2 B.R. 679, 5 B.C.D. at 1394; In re Pitts, supra, 2 B.R. at 478-79, 5 B.C.D. at 1130; In re McAloon, 1 B.R. 766, 5 B.C.D. 1207, 1208 (Bkrtcy.E.Pa.1980); Matter of Sulzer, 2 B.R. 630, 5 B.C.D. 1314, 1316 (S.N.Y.1980); 2 Collier supra, §§ 361.01[3] at 361-9; 362.01[1] at 362-15. In judging this proposal it should be noted that the Bank has the burden of proof on the issue of the debtor’s equity in the collateral, but the debtor has the burden on all other issues including adequate protection. 11 U.S.C. § 362(g). See Orr & Klee, Secured Creditors Under The New Bankruptcy Code, supra, 11 Unif.Com.C.L.J. at 323. Based on the evidence presented, this Court has found that the subject" }, { "docid": "10164561", "title": "", "text": "the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. See In re San Clemente Estates, 5 B.R. 605, 6 B.C.C. 838 (Bkrtcy., S.D.Calif.1980) citing to In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861 (N.D.Ohio 1976). The conclusion that an equity cushion created by the excess of security over debt can itself constitute adequate protection with nothing more has been widely accepted. In re San Clemente Estates, supra; In re Tucker, 5 B.R. 180, 6 B.C.D. 699 (Bkrtcy., S.D.N.Y.1980); In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy., E.D.Va.1980); In re Sulzer, 2 B.R. 680, 5 B.C.D. 1314 S.D.N.Y.1980); In re Pitts, 2 B.R. 476, 5 B.C.D. 1129 (Bkrtcy., C.D.Calif.1979); 2 Collier on Bankruptcy, § 361.01[3]; § 362.01[1] (15th ed.). In the case sub judice, we conclude that the amount of the equity cushion is sufficiently large at this time to make a granting of the relief from the stay a premature action. We have held in the past that “the concept of adequate protection requires that the secured creditor be completely compensated or be given a ‘substitute of the most indubitable equivalence’ either now or in the near future”. In re Heath, 9 B.R. 665 (E.D.Pa., 1981). Based on the present record, we can only conclude that the creditor’s interest is adequately protected and will be completely compensated due to the substantial equity present here upon either the confirmation of a Chapter 13 plan or eventual sale of the property. Although relief is being denied at this juncture, the safeguards of adequate protection to the secured creditor must remain paramount and thus, denial in no way precludes subsequent complaints should there be an erosion of the collateral. Delaware Valley has failed to present evidence as to the current arrearage of the mortgage. Thus, we are unable to consider the feasibility of ordering periodic payments as protection against any possible erosion of the security. In its Complaint, Delaware Valley has raised various objections to the debtor’s plan. Those objections were neither argued nor tried. The court must" }, { "docid": "10164560", "title": "", "text": "seriously detrimental to the bankruptcy laws. Thus, this section recognizes the availability of alternate means of protecting a secured creditor’s interest. Though the creditor might not receive his bargain in kind, the purpose of the section is to insure that' the secured creditor receives in value essentially what he bargained for. H.R. Rep.No.95-595, 95th Cong., 1st Sess'. 339 (1977), U.S.Code Cong. & Admin.News 1978, 5787, 6295. This concept of adequate protection was first discussed in In re Murel Holding Corporation, 75 F.2d 941 (2nd Cir. 1935) where Judge Learned Hand stated: It is plain that ‘adequate protection’ must be completely compensatory; ... a creditor ... wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders unless by a substitute of the most indubitable equivalence. (Emphasis added.) Id., at p. 942 • Although the existence of an equity cushion as a method of adequate protection is not specifically delineated in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. See In re San Clemente Estates, 5 B.R. 605, 6 B.C.C. 838 (Bkrtcy., S.D.Calif.1980) citing to In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861 (N.D.Ohio 1976). The conclusion that an equity cushion created by the excess of security over debt can itself constitute adequate protection with nothing more has been widely accepted. In re San Clemente Estates, supra; In re Tucker, 5 B.R. 180, 6 B.C.D. 699 (Bkrtcy., S.D.N.Y.1980); In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy., E.D.Va.1980); In re Sulzer, 2 B.R. 680, 5 B.C.D. 1314 S.D.N.Y.1980); In re Pitts, 2 B.R. 476, 5 B.C.D. 1129 (Bkrtcy., C.D.Calif.1979); 2 Collier on Bankruptcy, § 361.01[3]; § 362.01[1] (15th ed.). In the case sub judice, we conclude that the amount of the equity cushion is sufficiently large at this time to make a granting of the relief from the stay a premature action. We have held in the past that “the concept" }, { "docid": "9572821", "title": "", "text": "valuation, I find that the going concern value of debtor, including the Interests, is $23.6 million. Furthermore, since Downey has an interest in the Bank Collateral through the Inter-Creditor Agreement, the total amount of this value is available to determine if Downey is adequately protected. Debtor has not made an offer of adequate protection. Therefore, adequate protection must rest on the interest which Downey has in the assets of debtor. In other words, is there a sufficient “equity cushion” to protect Downey’s interest? An equity cushion is a recognized and accepted form of adequate protection. In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Automtic Voting Machine Corporation, supra at 972. As the court stated in Mellor, Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. [110] at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. [Citations omitted].” Supra at 1400. To determine if there is an equity cushion and its adequacy, I did a simple mathematical calculation. I deducted from $23.6 million the priority security interests of West Bank and Hancock aggregating $4.3 million and the priority payment of $1.5 million to Bank. This left $17.8 million to be allocated between Downey and Bank under the Inter-Creditor Agreement. Dow-ney’s share of this amount is approximately $5.9 million. Since debtor’s obligation to Downey is $4.9 million, this leaves Downey with an equity cushion of approximately $1.0 million. This is 20.4% of the debt which I believe adequately protects Downey. See, In re Mellor, supra at 1401. Downey argues that I should deduct an additional $2.0 million from the going concern value because the United States Government has a claim in this amount for prepayments to debtor on certain government contracts. Downey cites In re American Pouch, 769 F.2d 1190 (7th Cir.1985), for this proposition. Based on American Pouch, the" }, { "docid": "8384974", "title": "", "text": "11 U.S.C. § 361(2); or by granting any other relief, with certain exceptions, “as will result in the [creditor’s] realization ... of the indubitable equivalent of [its] interest in property,” 11 U.S.C. § 361(3). . Of course, the Bankruptcy Court’s factual findings must be affirmed unless clearly erroneous. In re Perimeter Park Investment Assoc., Ltd, 616 F.2d 150, 151 (5th Cir.1980); Bankruptcy Rule 8013. The reviewing court may reverse in the presence of some testimony in the record supporting the Bankruptcy Judge’s conclusions only if the court “on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). .Although the presence of an equity cushion is the classic form of adequate protection, Delaware Valley Sav. & Loan Ass’n v. Curtis (In re Curtis), 9 B.R. 110, 112 (Bkrtcy.E.D.Pa.1981), the lack of equity alone should not be determinative on that issue. Some courts have improperly narrowed their focus to the equity cushion, instead of making the necessary evaluation, first, of the stability of the collateral; second, of the likelihood of reorganization; and third, of the credibility of the debtor’s protection plan. See, e.g., Central Penn Nat’l Bank v. Zimmerman (In re Ludwig Honold Mfg. Co.), 33 B.R. 722, 723 (Bkrtcy.E.D.Pa.1983); American Bank and Trust Co. of Pa. v. Ram Mfg. Co. (In re Ram Mfg. Co.), 32 B.R. 969, 971 (Bkrtcy.E.D.Pa.1983); Provident Mut. Life Ins. Co. v. Winslow Center Assoc. (In re Winslow Center Assoc.), 32 B.R. 685, 687 (Bkrtcy.E.D.Pa.1983); Presidential Commercial Fund, Inc. v. Jones (In re Jones), 26 B.R. 142, 144 (Bkrtcy.E.D.Pa.1983); Fairmont Foods Co. v. AZJZ, Inc. (In re AZJZ, Inc.), 22 B.R. 966, 968 (Bkrtcy.E.D.Pa.1982). . Section 506(b) provides as follows: To the extent that an allowed secured claim is secured by property the value of which ... is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided under the agreement" }, { "docid": "19249720", "title": "", "text": "the form of cash payment, and has not provided additional liens as protection. No other evidence was presented by the debtor to show that the indubitable equivalent of Citicorp’s interest is being adequately protected by other means, other than expert testimony from a debtor’s witness which offered the appraised value of the vessels to be in excess of the debt owed to the creditor here. Citicorp offered substantial expert appraisal testimony to contradict that of the debtor. The Court concludes that, on the basis of the weight and credibility of the evidence, as shown below, the expert appraisal testimony of Citicorp witness proved that the value of the secured asset, on today’s market was substantially less than the debt owed. Where it is shown that a creditor is well secured, the “equity cushion” may constitute adequate protection in satisfaction of statutory requirements, and this cushion is considered the classic form of protection for a secured debt. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Cal.1980); In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Moor, 51 B.R. 640 (Bankr.N.D.Miss.1985). The ratio of the debt owed to the value assigned to the collateral must be reviewed to determine whether adequate protection exists. “Equity cushion\" has been defined as the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (B.Ct.E.D.Pa.1981), aff'd, 14 B.R. 542 (E.D.Pa.1981). “Equity,” as opposed to “equity cushion,” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. La Jolla Mortgage Fund [v. Rancho El Cajon Assoc.], 18 B.R. [283] at 287 [S.D.Cal.1982]. In re Mellor, at 1400 n. 2. This issue is the primary focus of this lawsuit, in order to reach the above conclusions. An analysis of the testimony presented at the valuation stage of the hearing is therefore necessary to" }, { "docid": "1133532", "title": "", "text": "Bankruptcy Code § 361 does not define what constitutes adequate protection for any given case, but merely gives three nonexclusive examples of adequate protection when ordered or required as a condition for the exercise of powers authorized under Code § 362. The three suggested examples are: (1) Periodic payments. (2) An additional or replacement lien. (3) Realization of the indubitable equivalent of the impaired property interest. In this case, the debtor-in-possession, as the party opposing relief from the automatic stay is required by Code § 362(g)(1) to shoulder the burden of proof as to adequate protection and all other issues, except the debtor’s equity in the property. Empire, as the secured creditor holding a mortgage on the property in question, has the burden of proof on the debtor’s equity, or lack of equity, in the property. See Code § 362(g)(2). The debtor-in-possession has proposed that the mortgaged property itself provides a sufficient equity cushion for Empire to constitute the requisite adequate protection within the meaning of Code § 362(d)(1) to justify continuing the automatic stay. The evolving case law under Code § 362(g)(2) supports the proposition that the property alone may provide a sufficient cushion for a secured creditor so as to justify a continuance of the status quo. Thus, in Rogers Development Corp., 5 B.C.D. 1392, 2 B.R. 679 (Bkrtcy., E.D.Va.1980) the Bankruptcy Court reasoned that a cushion of $130,000 in real estate intended for multi-family dwellings, valued at $750,000, adequately protected the mortgagee. The decision is significant because the debtor could not have satisfied the alternative basis for relief under Code § 362(d)(2) because the debtor had no equity in the property when viewed in the context of all other encumbrances against it. In San Clemente Estates, 6 B.C.D. 838, 5 B.R. 605 (Bkrtcy., S.D.Calif.1980), the Bankruptcy Court held that an equity cushion of 65% was adequate protection for the interest of the secured creditor. In some instances the courts have acceded to the secured creditor’s argument that the original bargain called for an equity cushion and that foreclosure is proper when the cushion is reduced to a" }, { "docid": "17223130", "title": "", "text": "than $189,000, which exceeds the value of the residence ($105,000), their interest ($17,960.06) lacked adequate protection. While the term “adequate protection” is not defined in the Code, 11 U.S.C. § 361 sets forth three non-exclusive examples of what may constitute adequate protection: 1) periodic cash payments equivalent to decrease in value, 2) an additional or replacement lien on other property, or 3) other relief that provides the indubitable equivalent. In re Curtis, 9 B.R. 110, 111-112 (B.Ct.E.D.Penn.1981). The Mellors contend that the sellers are adequately protected by an “equity cushion.” Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. In re San Clemente Estates, 5 B.R. 605, 610 (B.Ct.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (B.Ct.S.D.N.Y.1980); 2 Collier on Bankruptcy, § 361.-02[3] at 361-9; (15th ed. 1979). A sufficient equity cushion has been found to exist although not a single mortgage payment had been made. In re Curtis, 9 B.R. at 111. The bankruptcy court’s conclusion that the sellers’ interest lacked adequate protection was apparently based on its finding that “neither the Debtors nor the Estate have any realizable equity” in the residence. Findings of Fact # 14. However, in equating debtors’ “equity” with “adequate protection” for the sellers, the bankruptcy court erroneously included the junior lien of AKOP, Inc. Although the existence of a junior lien may be relevant in determining “equity” under § 362(d)(2), it cannot be considered in determining whether the interest of a senior lienholder is adequately protected. La Jolla Mortgage Fund, 18 B.R. at 289. The claim of a junior lienholder cannot affect the claim of the holder of a perfected senior interest. See In re Wolford Enterprises, Inc., 11 B.R. 571, 574 (B.Ct.S.D.W.Virg.1981) [rejecting contention that defendant lacked equity due to second deed of trust;" } ]

[ { "docid": "1729969", "title": "", "text": "93 Civ. 3770, 1992 WL 196741 (S.D.N.Y. Aug. 3, 1992). This case fails to distinguish, cite or even address any authority directly on point. Instead, the case relies on Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114 (2d Cir.1991). Although Wagoner broadly states that: “any limitations defense—whether stemming from the arbitration agreement, arbitration association rule, or state statue— is an issue to be addressed by the arbitrators”, 944 F.2d at 121, the case does not directly address the issues here at hand. To the extent the case conflicts with Famam and Sorrells, the Court rejects it as unpersuasive. Accordingly, the Court finds that under Section 15 of the NASD Code, the arbitration panel has no jurisdiction over any claim not submitted to arbitration within six years of the “event or occurrence” leading to the dispute. The Court now turns to determining what constitutes an “event or occurrence” for the purposes of the case at hand. The case of Edward D. Jones & Co. v. Sorrells, 957 F.2d 509 (7th Cir.1992) is directly on point. In Sorrells, the Seventh Circuit implicitly held that, for the purpose of NASD Code Section 15, an “event or occurrence” is the date of investment. The Court stated: More than six years elapsed from the date the Sorrells made the last of the ten investments which gave rise to their claims ... Thus, the Sorrells’ arbitration claims were not timely filed under Section 15. Sorrells, 957 F.2d at 512. According to Merrill Lynch two of the limited partnership investments complained of by the Janas were invested in more than six years before their claims were submitted to arbitration. The two investments were made on April 4, 1985 and April 15, 1986. Since the claims regarding these investments were submitted to NASD on June 25, 1986, they are both untimely. [7] The Janas contend that the date of investment should not be used for measuring timeliness because Merrill Lynch and Waigand “fraudulently concealed” the nature of the investment and the harm incurred. Similarly, the Janas argue that the six year time requirement should be tolled due" } ]

[ { "docid": "17147310", "title": "", "text": "holding in Nemecek applies equally to the present dispute. On remand, therefore, the district court should disregard Ware’s claims of fraudulent concealment in determining whether the six-year period has run and enjoin the arbitration of all of Ware’s claims that arose more than six years before the filing of Ware’s arbitration claim. Unfortunately, Ware’s statement of claim filed with the NASD is far from clear. It does, however, suggest that at least some of her claims remain viable. It alleges that Osier traded on Ware’s account from 1985 until at least August 1992. Moreover, some of the claims appear to be based on wrongdoing occurring after the initial investments were made. For instance, Ware contends that Osier falsely represented the value of many of her investments on her monthly statement. She also contends that Osier engaged in “churning,” a cause of action that only arises after trading becomes excessive. In these instances, “the occurrence or event giving rise to the act or dispute, claim or controversy” would not be the initial investment. Although counsel for Osier contended at oral argument that the only relevant date for determining whether a claim is time-barred is when the initial investment was made, this theory does not comport with either the “occurrence or event” language contained in § 15 or the caselaw that has developed thereunder. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d 381, 385 (11th Cir.1995) (“If the Cohens prove that Merrill Lynch reported false values for their investments through bogus statements, then Merrill Lynch’s act of sending the false statements, rather than the initial purchase of the investments, may be the occurrence or event giving rise to their claims.”) (footnote omitted); PaineWebber Inc. v. Hofmann, 984 F.2d 1372, 1380 (3d Cir.1993) (recognizing that numerous claims may arise after the initial purchase of the investment at issue). Accepting Osier’s proposed approach would create situations in which certain claims would be barred before they even arose. Needless to say, we refuse to interpret the “occurrence or event” language, which does not otherwise suggest that the purchase date always triggers" }, { "docid": "1729960", "title": "", "text": "of Merrill Lynch. In opening their accounts, the Janas signed- similar customer agreements, each of which stated, in part: (1) that the agreements were governed by the laws of the State of New York and, (2) that any controversy between the contracting parties would be conducted pursuant to the provisions of either the Constitution and Rules of the Board of Governors of the New York Stock Exchange, Inc. (the “NYSE Rules”) or the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. (the “NASD Code”), at the Janas’ election. As a result of the dispute leading to this case, the Janas filed a Statement of Claim and Demand for Arbitration before NASD on June 25, 1992 and thereby decided that this controversy would be governed by the NASD Code. In their Statement of Claim, the Janas alleged that they had been fraudulently misled by their Merrill Lynch account executive, Mr. Paul E. Waigand, with respect to the nature of six limited partnership investments in which, at Waigand’s direction, they invested. In their Statement of Claim the Janas sought to impose joint and several liability on Merrill Lynch and Waigand for losses resulting from the investments. Additionally, the Janas made a demand for an award of punitive damages. On July 23, 1992, Merrill Lynch filed suit in the Supreme Court of the State of New York, seeking an order barring arbitration of several of the Janas claims and of their request for punitive damages. On November 30, 1992, the Honorable Edith Miller dismissed Merrill Lynch’s petition for lack of personal jurisdiction over the Janas. After Judge Miller’s decision NASD ordered Merrill Lynch and Waigand to file Answers and Submission Agreements in the arbitration. Merrill Lynch filed this action on February 26, 1993 and, on May 27, 1993, this Court entered an agreed order staying the arbitration proceedings pending resolution of the issues now presented. ANALYSIS The parties agree that, pursuant to the original customer agreements signed by the Janas, this ease is governed by the law of the State of New York to the extent that it is" }, { "docid": "15039965", "title": "", "text": "Director of Arbitration of the NASD has expressed the position that “[i]t has been determined that the purchase date is not [necessarily] the event or occurrence that gave rise to [the] dispute”). On remand, the district court should examine each of the Cohens’ claims\" in order to determine what is the “occurrence or event” giving rise to that claim. The court should then determine if more than six years has elapsed from that event and send any claims that remain viable to arbitration. Although our holding may compel federal courts to hold “mini-trials” on timeliness, which may be followed by full arbitration if the claims are not deemed time-barred, “concerns for judicial economy alone are not sufficient to justify interference with the binding agreement of the parties.” Goldberg, 912 F.2d at 1422. REVERSED AND REMANDED. . The Cohens alleged that between 1985 and 1991, Merrill Lynch reported that their investments were worth $230,000, even though Merrill Lynch and Sanford knew that the investments had declined in value by more than $100,000. The Cohens contended that Merrill Lynch finally reported the \"true value\" of their investments ($133,450) in January, 1992. . O'Neel did not construe § 15. . Thé parties incorporated the NASD Code into-their agreement, and we therefore look to the Code for guidance. . Courts have concluded that because section 15 is an eligibility requirement rather than a procedural statute of limitations, claims are not subject to equitable tolling. See, e.g., Sorrells, 957 F.2d at 513 (Section 15 cannot be tolled); Hofmann, 984 F.2d at 1378 (same). Although we believe this principle to be correct, it fails to resolve the question: what was the occurrence or event that gave rise to the Cohens’ claims. . The present record on appeal is insufficient to allow this court to determine whether \"or not Merrill Lynch perpetrated a continuing fraud on the Cohens. . We express no opinion, however, as to the applicable \"occurrence or event” in a case in which a broker used fraud to procure the sale of securities and then continued to conceal the fraud. In this case, if" }, { "docid": "15039964", "title": "", "text": "or event giving rise to the act or dispute, claim or controversy,” within the meaning of § 15, is the purchase of these interests, and thus, the Cohens claims are time-barred. It is not a foregone conclusion, however, that the purchase date is the relevant occurrence or event giving rise to the Cohens’ claims, as neither § 15 nor any other provision of the NASD Code so provides. If the Cohens prove that Merrill Lynch reported false values for their investments through bogus statements, then Merrill Lynch’s act of sending the false statements, rather than the initial purchase of the investments, may be the occurrence or event giving rise to their claims. See Hofmann, 984 F.2d at 1381 (explaining that PaineWebber’s active concealment of its wrongdoing can “be viewed as an independent cause of action based on a duty owed by PaineWebber to its customers to inform them of a broker’s wrongdoing”); Quinton F. Seamons, Does Securities Arbitration Go On Forever? Eligibility and Stahdes of Limitation, 8 INSIGHTS 17, 19 (May, 1994) (noting that the Director of Arbitration of the NASD has expressed the position that “[i]t has been determined that the purchase date is not [necessarily] the event or occurrence that gave rise to [the] dispute”). On remand, the district court should examine each of the Cohens’ claims\" in order to determine what is the “occurrence or event” giving rise to that claim. The court should then determine if more than six years has elapsed from that event and send any claims that remain viable to arbitration. Although our holding may compel federal courts to hold “mini-trials” on timeliness, which may be followed by full arbitration if the claims are not deemed time-barred, “concerns for judicial economy alone are not sufficient to justify interference with the binding agreement of the parties.” Goldberg, 912 F.2d at 1422. REVERSED AND REMANDED. . The Cohens alleged that between 1985 and 1991, Merrill Lynch reported that their investments were worth $230,000, even though Merrill Lynch and Sanford knew that the investments had declined in value by more than $100,000. The Cohens contended that" }, { "docid": "3823146", "title": "", "text": "the act or dispute, claim or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction. The state court ordered the parties to arbitrate Calabria’s remaining claims that related to securities purchased on or after October 7, 1986. Calabria thereafter filed the present action in Texas state court, and defendants removed the case to this court. Calabria seeks damages for negligence, breach of contract, breach of fiduciary duty, Texas law securities fraud, common law fraud, and violations of the Texas Deceptive Trade Practices—Consumer Protection Act in connection with defendants’ recommendation and sale of securities to Calabria between February 1986 and October 7, 1986. In other words, Calabria sues in this court based upon claims that were rendered ineligible for arbitration pursuant to § 15 of the NASD Code because over six years had elapsed from each occurrence. Defendants move to dismiss for failure to state a claim, contending that because Calabria is barred from bringing the claims in arbitration, she is also precluded from asserting them in a judicial forum. II A The question presented is whether Calabria’s ineligibility under § 15 of the NASD Code to arbitrate claims over six years old precludes her, by virtue of a mandatory arbitration provision in her customer account agreement, from adjudicating the claims in a judicial forum. Defendants urge this court to adopt the reasoning of Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Shelapinsky, No. 93-1553 (W.D.Pa. Mar. 16, 1994); In re Shearson Lehman Bros., Inc., No. 118446/93 (N.Y.S.Ct. Feb. 15, 1994); Piccolo v. Faragalli, 1993 WL 331933 (E.D.Pa. Aug. 24, 1993); and Castellano v. Prudential-Bache Sec., Inc., 1990 WL 87575 (S.D.N.Y. June 19, 1990), and hold that Calabria’s claims may not be litigated. Calabria responds that this court should follow Smith Barney, Harris Upham & Co. v. St. Pierre, 1994 WL 11600 (N.D.Ill. Jan. 4, 1994); and Prudential Sec., Inc. v. LaPlant, 829 F.Supp. 1239 (D.Kan.1993), and decide that the claims are litigable. The court may not dismiss Calabria’s complaint for failure" }, { "docid": "864983", "title": "", "text": "to transfer certain splits and dividends that were declared following the sales. NFSC sought arbitration of its claim pursuant to NASD regulations. In response to NFSC’s claim, Pacific filed the present action, seeking a declaratory judgment that NFSC is precluded from arbitrating its claim. Specifically, Pacific maintains that NFSC’s arbitration claim is barred by Section 15 of the NASD Code of Arbitration Procedures, which provides: No dispute, claim or controversy shall be eligible for submission to arbitration under this code where six years shall have elapsed from the occurrence or event giving rise to the act or the dispute, claim, or controversy. NFSC subsequently filed the present motion to stay or dismiss Pacific’s action and compel arbitration. II. Discussion The only issue presented by the present motion is whether an “occurrence or event” for the purposes of Section 15 of the NASD Code of Arbitration Procedures is measured by the date of the investment, or by some other date. Pacific maintains that “ ‘the occurrence or event giving rise to the ... claim’ (emphasis added) was NFSC’s purchase of the PLD shares from Pacific on August 27, 1987.” Plaintiffs Memorandum in Opposition to Defendant’s Motion at 4 (emphasis added). In support, Pacific cites a number of cases which, at least facially, bolster Pacific’s claim. For example, in Edward D. Jones & Co. v. Sorrells, 957 F.2d 509 (7th Cir.1992), the Seventh Circuit used the date on which the defendants made their investments as the starting date for Section 15’s six year period, and concluded that the claims were ineligible for arbitration. Relying on Sorrells, this court’s colleague, Judge Nordberg, recently concluded that “the Seventh Circuit implicitly held that, for the purpose of NASD Code Section 15, an ‘event or occurrence’ is the date of investment.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Jana, 835 F.Supp. 406, 411 (N.D.Ill.1993) (citing Sorrells, 957 F.2d at 512)). See also Dean Witter Reynolds, Inc. v. McCoy, 853 F.Supp. 1023, 1030-31 (E.D.Tenn.1994) (same) (citing Sorrells, 957 F.2d at 512; Jana, 835 F.Supp. at 411)). Pacific asserts that the broad language of the above cases" }, { "docid": "1729959", "title": "", "text": "MEMORANDUM OPINION AND ORDER NORDBERG, District Judge. Edward C. Jana and his elderly mother Lucille Jana made several investments through Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”). The Janas invested in a series of limited partnerships that eventually resulted in substantial financial loss and a dispute with Merrill Lynch over who was to bear that loss. Pursuant to customer agreements with Merrill Lynch, the Janas sought to arbitrate the dispute before the National Association of Securities Dealers, Inc. (“NASD”). They filed a Statement of Claim and Demand for Arbitration with NASD on June 25, 1992. On February 26,1993, Merrill Lynch filed this action seeking injunctive relief with respect to elements of the Janas’ requested arbitration. Before the Court are two related motions. Merrill Lynch has filed a Motion for Injunctive Relief based upon their Complaint and the Janas have filed a Motion to Dismiss Complaint and to Compel Arbitration. FACTUAL AND PROCEDURAL BACKGROUND In 1983 and 1986 respectively, Lucille Jana and her son Edward C. Jana opened accounts with the Naperville, Illinois office of Merrill Lynch. In opening their accounts, the Janas signed- similar customer agreements, each of which stated, in part: (1) that the agreements were governed by the laws of the State of New York and, (2) that any controversy between the contracting parties would be conducted pursuant to the provisions of either the Constitution and Rules of the Board of Governors of the New York Stock Exchange, Inc. (the “NYSE Rules”) or the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. (the “NASD Code”), at the Janas’ election. As a result of the dispute leading to this case, the Janas filed a Statement of Claim and Demand for Arbitration before NASD on June 25, 1992 and thereby decided that this controversy would be governed by the NASD Code. In their Statement of Claim, the Janas alleged that they had been fraudulently misled by their Merrill Lynch account executive, Mr. Paul E. Waigand, with respect to the nature of six limited partnership investments in which, at Waigand’s direction, they invested. In their" }, { "docid": "864985", "title": "", "text": "is controlling. We disagree. The applicability of the “rule” stated by Sorrells and its progeny is clearly limited by the context in which it has been applied. In each of the above cases, and, indeed, in the remainder of the cases cited by Pacific, the investor challenged the suitability of the investment. For example, in Jana, the investors asserted that the broker-dealer’s account executive fraudulently misled them as to the nature of the investments he recommended. Jana, 835 F.Supp. at 408. Likewise, in Sorrells, the investors claimed that the broker-dealers “misrepresented material information as to the nature of the investments.” Sorrells, 957 F.2d at 510. In McCoy, the investors alleged that the broker-dealer’s agent breached his fiduciary duty to them by selecting investments which maximized transaction fees and commissions, to the investors’ detriment, and by investing in high risk ventures, contrary to the investors’ “primary objectives of safety of principal, steady income and liquidity.” McCoy, 853 F.Supp. at 1026-27. See also Smith Barney, Harris Upham & Co. v. St. Pierre, No. 92 C 5735, 1994 WL 11600, at *2 (N.D.Ill. Jan. 4, 1994) (misrepresenting nature of investments); Castellano v. Prudential-Bache Securities, Inc., No. 90 Civ. 1287 (WCC), 1990 WL 87575, at *1 (S.D.N.Y. June 19, 1990) (misrepresenting deductibility of investment). In short, in all of these eases, the “investments were not suitable on the dates the [investments] were initially purchased.” McCoy, 853 F.Supp. at 1030. As a result, the date of “the occurrence or event giving rise to the ... claim” was clearly the date of the investment. Here, however, the transaction itself was entirely proper. NFSC does not allege that Pacific violated its obligations to NFSC at the time of the sale of the PLD stock. Indeed, NFSC could not have filed a claim at the time of the sale, because both parties had satisfied their obligations to that point; NFSC had paid $96,000, and Pacific had delivered the share certificates. This was not the case in Sorrells, Jana, or the other cases cited above. In those cases, the investor had a claim at the moment the broker-dealer made" }, { "docid": "15039966", "title": "", "text": "Merrill Lynch finally reported the \"true value\" of their investments ($133,450) in January, 1992. . O'Neel did not construe § 15. . Thé parties incorporated the NASD Code into-their agreement, and we therefore look to the Code for guidance. . Courts have concluded that because section 15 is an eligibility requirement rather than a procedural statute of limitations, claims are not subject to equitable tolling. See, e.g., Sorrells, 957 F.2d at 513 (Section 15 cannot be tolled); Hofmann, 984 F.2d at 1378 (same). Although we believe this principle to be correct, it fails to resolve the question: what was the occurrence or event that gave rise to the Cohens’ claims. . The present record on appeal is insufficient to allow this court to determine whether \"or not Merrill Lynch perpetrated a continuing fraud on the Cohens. . We express no opinion, however, as to the applicable \"occurrence or event” in a case in which a broker used fraud to procure the sale of securities and then continued to conceal the fraud. In this case, if the Cohen’s allegations are correct, Merrill Lynch did not merely conceal the fraud, but rather affirmatively misstated the value of the Cohens’ investments over a six year period. .For example, with respect to the Cohens' claim for breach of fiduciary duty, if there is such a duty, then each misrepresentation might be an event or occurrence giving rise to a claim for breach of fiduciary duty. If, by contrast, the Cohens' fraud claim is predicated solely upon the unsuitability of their purchase, then the relevant \"occurrence or event” may be the investment." }, { "docid": "15039963", "title": "", "text": "of the parties’ intent to have the arbitrators, and not the court, determine which disputes the parties have agreed to submit to arbitration.”). Section 35 is a general contract term which gives the arbitrator the power to interpret the NASD Code. Section 15, by contrast, is a specific provision, which delineates the claims that are untimely, and thus, not eligible for arbitration. “When general positions in a contract are qualified by the specific provisions, the rule of construction is that the specific provisions in the agreement control.” Goldberg v. Bear, Stearns & Co., Inc., 912 F.2d 1418, 1421 (11th Cir.1990). We conclude that, at most, section 35 creates an ambiguity as to who determines arbitrability. Because an ambiguity is insufficient to override the presumption that courts determine arbitrability, see Kaplan, — U.S. at -, 115 S.Ct. at 1924, we conclude that the district court must determine whether the dispute between the Cohens and Merrill Lynch is arbitrable. IV. The Cohens purchased the limited partnership interests between 1985 and 1987. Merrill Lynch argues that the “occurrence or event giving rise to the act or dispute, claim or controversy,” within the meaning of § 15, is the purchase of these interests, and thus, the Cohens claims are time-barred. It is not a foregone conclusion, however, that the purchase date is the relevant occurrence or event giving rise to the Cohens’ claims, as neither § 15 nor any other provision of the NASD Code so provides. If the Cohens prove that Merrill Lynch reported false values for their investments through bogus statements, then Merrill Lynch’s act of sending the false statements, rather than the initial purchase of the investments, may be the occurrence or event giving rise to their claims. See Hofmann, 984 F.2d at 1381 (explaining that PaineWebber’s active concealment of its wrongdoing can “be viewed as an independent cause of action based on a duty owed by PaineWebber to its customers to inform them of a broker’s wrongdoing”); Quinton F. Seamons, Does Securities Arbitration Go On Forever? Eligibility and Stahdes of Limitation, 8 INSIGHTS 17, 19 (May, 1994) (noting that the" }, { "docid": "1729980", "title": "", "text": "preempts New York State law with respect to the Janas' demand for such damages. . In their Statement of Claim, the Janas refer to six limited partnerships. The Statement of Claim conspicuously fails to allege a specific date of investment with respect to each partnership. One partnership investment, dated \"late 1985”, clearly falls without the requirements of Section 15. Since the Janas filed their statement of claim on June 25, 1992, any investment made prior to June 25, 1986, would not satisfy the requirements of Section 15. Another partnership, dated \"1986”, is claimed by Merrill Lynch to have been invested in on April 15, 1986. This date is not disputed by the Janas and thus falls without the requirements of Section 15. . The Miller case is easily distinguished, however. There, the Fourth Circuit refused to overturn an arbitration panel’s decision to adopt Maryland’s three year statute of limitations instead of New York's six years or Section 15's six years. The Miller panel did not address the question of whether the panel lacked jurisdiction over the plaintiff’s claim. Since the panel offhandedly classified Section 15 as a statute of limitations and concentrated its discussion on the applicable statute of limitations, it appears that the panel was not aware of the jurisdictional issues presented here. . NYSE Rule 603 is the equivalent of NASD Code Section 15. . The Janas also contend that they are third-party beneficiaries of Merrill Lynch’s contract with NASD and that this fact mandates the requested dismissal of the Complaint in this case. However, the eligibility issue here presented turns on the interpretation of Section 15, not how it is sought to be enforced. . The first of these two dates is essentially agreed upon by the parties because the Janas date that investment \"1985.” The second date is less certain because the Janas date that investment \"1986.” The Court assumes that the specificity of Merrill Lynch’s date is accurate for the purpose of determining this motion since the Janas have not denied its accuracy. . At minimum, this would be a difficult issue to resolve. As" }, { "docid": "9575864", "title": "", "text": "over the next several years. In August 1993, Ms. Cogswell filed an arbitration proceeding against Merrill Lynch and her account executive, Mr. Trevor, before the National Association of Securities Dealers, Inc. (“NASD”). Ms. Cogswell’s filing included a “Uniform Submission Agreement” acknowledging the proceeding was to be governed by the “Constitution, By-Laws, Rules, Regulations and/or Code of Arbitration ... of the [NASD].” Ms. Cogswell’s primary allegation was the limited partnership interests “were unsuitable in light of [her] financial situation and investment objectives.” Specifically, she alleged the limited partnership interests were of high risk and would not be liquid for many years into the future. The investments were tax shelters and Trevor knew, or should have known, that [she] did not need tax shelters. Trevor earned substantial commissions by purchasing these investments for [her] account, substantially in excess of the amount he would have earned if he had purchased suitable securities for her account. Merrill Lynch then petitioned the New York Supreme Court for New York County for an order permanently staying arbitration. Merrill Lynch contended among other things that the dispute was ineligible for arbitration under § 15 of the NASD Code of Arbitration Procedure, which provides: No dispute, claim or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction. The court ordered Ms. Cogswell to show cause why Merrill Lynch’s petition should not be granted. Merrill Lynch’s attorney appeared at the show cause hearing, but Ms. Cogswell and her attorney did not. The court granted Merrill Lynch’s petition both because Ms. Cogswell failed to respond to the show cause order and because her action was time-barred under § 15 of the NASD Code. While Merrill Lynch’s action was pending in New York, Ms. Cogswell filed an application for an order compelling arbitration in the United States District Court for the" }, { "docid": "864984", "title": "", "text": "was NFSC’s purchase of the PLD shares from Pacific on August 27, 1987.” Plaintiffs Memorandum in Opposition to Defendant’s Motion at 4 (emphasis added). In support, Pacific cites a number of cases which, at least facially, bolster Pacific’s claim. For example, in Edward D. Jones & Co. v. Sorrells, 957 F.2d 509 (7th Cir.1992), the Seventh Circuit used the date on which the defendants made their investments as the starting date for Section 15’s six year period, and concluded that the claims were ineligible for arbitration. Relying on Sorrells, this court’s colleague, Judge Nordberg, recently concluded that “the Seventh Circuit implicitly held that, for the purpose of NASD Code Section 15, an ‘event or occurrence’ is the date of investment.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Jana, 835 F.Supp. 406, 411 (N.D.Ill.1993) (citing Sorrells, 957 F.2d at 512)). See also Dean Witter Reynolds, Inc. v. McCoy, 853 F.Supp. 1023, 1030-31 (E.D.Tenn.1994) (same) (citing Sorrells, 957 F.2d at 512; Jana, 835 F.Supp. at 411)). Pacific asserts that the broad language of the above cases is controlling. We disagree. The applicability of the “rule” stated by Sorrells and its progeny is clearly limited by the context in which it has been applied. In each of the above cases, and, indeed, in the remainder of the cases cited by Pacific, the investor challenged the suitability of the investment. For example, in Jana, the investors asserted that the broker-dealer’s account executive fraudulently misled them as to the nature of the investments he recommended. Jana, 835 F.Supp. at 408. Likewise, in Sorrells, the investors claimed that the broker-dealers “misrepresented material information as to the nature of the investments.” Sorrells, 957 F.2d at 510. In McCoy, the investors alleged that the broker-dealer’s agent breached his fiduciary duty to them by selecting investments which maximized transaction fees and commissions, to the investors’ detriment, and by investing in high risk ventures, contrary to the investors’ “primary objectives of safety of principal, steady income and liquidity.” McCoy, 853 F.Supp. at 1026-27. See also Smith Barney, Harris Upham & Co. v. St. Pierre, No. 92 C 5735, 1994" }, { "docid": "1729962", "title": "", "text": "not preempted by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Also pursuant to their customer agreements, the Janas had the right to elect whether to arbitrate their dispute with Merrill Lynch under the Constitution and Rules of the Board of Governors of the New York Stock Exchange, Inc. or under the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. Having-chosen to arbitrate this ease with NASD, the Janas have chosen that the case be governed by the NASD Code as well. In its Complaint seeking injunctive relief, Merrill Lynch seeks to enjoin two separate elements of the Janas’ arbitration claim: certain compensatory claims that it argued to be ineligible for arbitration and the Janas request for punitive damages. Merrill Lynch first argues that Section 15 of the NASD Code prevents the arbitration panel from hearing certain ineligible claims made by the Janas (the “eligibility issue”). Next, Merrill Lynch argues that New York law bars the arbitration panel from imposing punitive damages (the “punitive damages issue”). The Court addresses these elements separately. 1. Eligibility With respect to the eligibility issue, Section 15 of the NASD Code is central to the resolution of both motions now before the Court. Section 15 says: No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years shall have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy. This Section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction. It is apparent that the Janas’ Statement of Claim, with respect to two of the Janas’ limited partnership investments, was made more than six years after the date of investment. In its Motion for Injunctive Relief Merrill Lynch contends that Section 15 of the NASD Code renders ineligible two of the Janas’ claims for compensatory damages. In rebuttal, the Janas contend that any such issue should be decided by the NASD arbitration panel and not this Court. This" }, { "docid": "1729961", "title": "", "text": "Statement of Claim the Janas sought to impose joint and several liability on Merrill Lynch and Waigand for losses resulting from the investments. Additionally, the Janas made a demand for an award of punitive damages. On July 23, 1992, Merrill Lynch filed suit in the Supreme Court of the State of New York, seeking an order barring arbitration of several of the Janas claims and of their request for punitive damages. On November 30, 1992, the Honorable Edith Miller dismissed Merrill Lynch’s petition for lack of personal jurisdiction over the Janas. After Judge Miller’s decision NASD ordered Merrill Lynch and Waigand to file Answers and Submission Agreements in the arbitration. Merrill Lynch filed this action on February 26, 1993 and, on May 27, 1993, this Court entered an agreed order staying the arbitration proceedings pending resolution of the issues now presented. ANALYSIS The parties agree that, pursuant to the original customer agreements signed by the Janas, this ease is governed by the law of the State of New York to the extent that it is not preempted by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Also pursuant to their customer agreements, the Janas had the right to elect whether to arbitrate their dispute with Merrill Lynch under the Constitution and Rules of the Board of Governors of the New York Stock Exchange, Inc. or under the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. Having-chosen to arbitrate this ease with NASD, the Janas have chosen that the case be governed by the NASD Code as well. In its Complaint seeking injunctive relief, Merrill Lynch seeks to enjoin two separate elements of the Janas’ arbitration claim: certain compensatory claims that it argued to be ineligible for arbitration and the Janas request for punitive damages. Merrill Lynch first argues that Section 15 of the NASD Code prevents the arbitration panel from hearing certain ineligible claims made by the Janas (the “eligibility issue”). Next, Merrill Lynch argues that New York law bars the arbitration panel from imposing punitive damages (the “punitive damages issue”). The Court" }, { "docid": "13519107", "title": "", "text": "of punitive damages, preempts state law which is hostile to punitive damages awards. Should Mastrobuono be overturned on appeal it might well simplify the question whether any federal court should disallow claims for punitive damages in deference to New York state law. Since we feel that the district court should not have considered this issue in the first place, we need not await this clarification from the Supreme Court. . Section 15 of the NASD Code provides that: No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim, or controversy. Def.Br. at 8 (emphasis supplied). . The most recent Seventh Circuit case to express this view was Edward D. Jones & Co. v. Sorrells, 957 F.2d 509 (7th Cir.1992). Sorrells did not address exactly what constitutes an “occurrence or event” that would trigger the six-year period, but at least one district court in the Northern District of Illinois has concluded that the \"date of investment” is implicated. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jana, 835 F.Supp. 406, 411 (N.D.Ill.1993). We express no view on the merit of the position that “occurrence or event” refers unambiguously to the date of the original transaction. . Judge Shadur required the Lauers to stay or voluntarily dismiss their § 4 motion in the Northern District of Florida in order to obtain a stay of his order pending appeal. June 9, 1994 Order (contained in Record on Appeal). . Merrill Lynch attempted to avail itself of this language by arguing to the Northern District court that it was obligated to order arbitration in this forum, despite the fact that arbitration was already pending in Florida. Plaintiffs’ Complaint at 7 (contained in Record on Appeal). The district court properly rejected this suggestion, acknowledging that it had no power to contravene the forum selection clause. Transcript of Proceedings of May 3, 1994 (reprinted in Def. Br.App.). . District courts, it is true, may order injunctive relief in cases where they are" }, { "docid": "1729979", "title": "", "text": "parties to arbitrate their case under the terns of their arbitration agreement. In the opinion of the Court, such an order is here appropriate. Motion GRANTED. As indicated above, the Court concludes that two of the Janas’ claims were not timely submitted to arbitration under NASD Code Section 15. Additionally, the Court concludes that the parties contracted to conduct their dispute under New York State law, thereby precluding a punitive damage award in arbitration. Accordingly, the Court orders the following: (1) The parties shall proceed to arbitration consistent with this memorandum opinion and order; specifically, (2) The investments made by the Janas on April 4, 1985 and on April 15, 1986 shall not be submitted to arbitration; (3) The Janas shall not submit punitive damage claims to arbitration; (4) This Court will retain jurisdiction over this matter for thirty days. Thereafter, this case will be dismissed and will constitute a final judgment for the purpose of appellate review. . As the Court's later discussion of punitive damages indicates, the parties disagree over whether the FAA preempts New York State law with respect to the Janas' demand for such damages. . In their Statement of Claim, the Janas refer to six limited partnerships. The Statement of Claim conspicuously fails to allege a specific date of investment with respect to each partnership. One partnership investment, dated \"late 1985”, clearly falls without the requirements of Section 15. Since the Janas filed their statement of claim on June 25, 1992, any investment made prior to June 25, 1986, would not satisfy the requirements of Section 15. Another partnership, dated \"1986”, is claimed by Merrill Lynch to have been invested in on April 15, 1986. This date is not disputed by the Janas and thus falls without the requirements of Section 15. . The Miller case is easily distinguished, however. There, the Fourth Circuit refused to overturn an arbitration panel’s decision to adopt Maryland’s three year statute of limitations instead of New York's six years or Section 15's six years. The Miller panel did not address the question of whether the panel lacked jurisdiction over" }, { "docid": "1729963", "title": "", "text": "addresses these elements separately. 1. Eligibility With respect to the eligibility issue, Section 15 of the NASD Code is central to the resolution of both motions now before the Court. Section 15 says: No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years shall have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy. This Section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction. It is apparent that the Janas’ Statement of Claim, with respect to two of the Janas’ limited partnership investments, was made more than six years after the date of investment. In its Motion for Injunctive Relief Merrill Lynch contends that Section 15 of the NASD Code renders ineligible two of the Janas’ claims for compensatory damages. In rebuttal, the Janas contend that any such issue should be decided by the NASD arbitration panel and not this Court. This argument is the crux of the Janas’ Motion to Dismiss. In support of their Motion to Dismiss Merrill Lynch’s Section 15 claims, the Janas assert that, under New York law, the application of the NASD Code, and thus Section 15, should be decided by the arbitrators, not the Court. Under the New York Court of Appeals case County of Rockland v. Primiano Const. Co., 51 N.Y.2d 1, 431 N.Y.S.2d 478, 409 N.E.2d 951 (1980), this argument depends on whether Section 15 is to be construed as a “condition precedent to arbitration” or as a “procedural stipulation.” According to the New York Court of Appeals, on motions to stay or to compel arbitration there are three threshold questions to be resolved by the courts: (1) whether the parties made a valid agreement to arbitrate; (2) if made, whether such an agreement was complied with; and (3) if the agreement was made and complied with, whether a claim under the agreement would have been barred by a statute of limitations if brought in state court. Id. at" }, { "docid": "864986", "title": "", "text": "WL 11600, at *2 (N.D.Ill. Jan. 4, 1994) (misrepresenting nature of investments); Castellano v. Prudential-Bache Securities, Inc., No. 90 Civ. 1287 (WCC), 1990 WL 87575, at *1 (S.D.N.Y. June 19, 1990) (misrepresenting deductibility of investment). In short, in all of these eases, the “investments were not suitable on the dates the [investments] were initially purchased.” McCoy, 853 F.Supp. at 1030. As a result, the date of “the occurrence or event giving rise to the ... claim” was clearly the date of the investment. Here, however, the transaction itself was entirely proper. NFSC does not allege that Pacific violated its obligations to NFSC at the time of the sale of the PLD stock. Indeed, NFSC could not have filed a claim at the time of the sale, because both parties had satisfied their obligations to that point; NFSC had paid $96,000, and Pacific had delivered the share certificates. This was not the case in Sorrells, Jana, or the other cases cited above. In those cases, the investor had a claim at the moment the broker-dealer made the unsuitable investment. Here, Pacific’s allegedly wrongful acts occurred only after the transaction was settled; absent a crystal ball, NFSC could not have known that Pacific would subsequently breach its obligations to NFSC. Because no “occurrence or event giving rise to ... [a] claim” took place at the time of the sale of the PLD stock, we conclude that August 27, 1987 is not the relevant starting date for Section 15’s six year time period. There remain two obvious possibilities for the relevant “occurrence or event:” the date that PLD declared each split or dividend, or the date that NFSC made its demand on Pacific for the splits and dividends. Although NFSC urges the latter, we need not resolve this issue. It is undisputed that all of the splits and dividends, as well as NFSC’s demand on Pacific, occurred after October 12, 1987, and therefore within Section 15’s six year period. Thus, under either scenario, NFSC is entitled to arbitration of its claims. III. Conclusion For the reasons set forth above, we grant defendant’s motion" }, { "docid": "15039953", "title": "", "text": "KRAVITCH, Circuit Judge: The issue presented in this appeal is whether arbitrators or courts decide the timeliness of claims sought to be arbitrated pursuant to the National Association of Securities Dealers (“NASD”) Code of Arbitration. We hold that the court determines whether a claim is timely; accordingly, we REVERSE and REMAND. I. Between 1985 and 1987, Simon and Judith Cohen (the “Cohens”) purchased limited partnership interests from David Sanford, a financial consultant with Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”). The Cohens and Merrill Lynch entered into a Customer Agreement requiring that all disputes between the parties be resolved by arbitration pursuant to the NASD Code of Arbitration (the “NASD Code”). In March 1993, the Cohens filed an arbitration claim with the NASD, alleging that through the use of “untrue statements and omissions,” Merrill Lynch sold them various investments that were unsuitable for them and that Merrill Lynch then “fraudulently concealed the fact that the Cohens’ investments had lost almost 50 percent of their value,” by reporting false values from 1985 through 1991. The Cohens asserted claims for: common law fraud; breach of fiduciary duty; gross negligence; violation of the Florida Securities and Investor Protection Act, Fla.Stat. ch. 517; and intentional infliction of emotional distress. Merrill Lynch responded by filing an action in Florida state court seeking to enjoin arbitration on the ground that most of the Cohens’ claims were time-barred. The Co-hens removed to federal court on the basis of diversity jurisdiction, and moved to compel arbitration and stay the federal action pending arbitration. The district court held that the question of whether the Cohens’ claims were time-barred was to be decided by the arbitration panel, not a federal court. The district court thus granted the Cohens’ motion to compel arbitration and accordingly dismissed Merrill Lynch’s suit. II. Section 15 of the NASD Code provides: Time Limitation on Submission: Section 15. No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim, or controversy. This" } ]

[ { "docid": "22087077", "title": "", "text": "pay Mid Atlantic the $74,869.37, plus interest, with a deduction for Mid Atlantic’s share of the attorney’s fees and court costs the Sereboffs had incurred in state court. See 303 F. Supp. 2d 691, 316 F. Supp. 2d 265 (Md. 2004). The Sereboffs appealed and the Fourth Circuit affirmed in relevant part. 407 F. 3d 212 (2005). The Fourth Circuit observed that the Courts of Appeals are divided on the question whether § 502(a)(3) authorizes recovery in these circumstances. See id., at 219-220, n. 7. We granted certiorari to resolve the disagreement. 546 U. S. 1030 (2005). II A A fiduciary may bring a civil action under § 502(a)(3) of ERISA “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U. S. C. § 1132(a)(3). There is no dispute that Mid Atlantic is a fiduciary under ERISA and that its suit in District Court was to “enforce . . . the terms of” the “Acts of Third Parties” provision in the Sereboffs’ plan. The only question is whether the relief Mid Atlantic requested from the District Court was “equitable” under § 502(a)(3)(B). This is not the first time we have had occasion to clarify the scope of the remedial power conferred on district courts by § 502(a)(3)(B). In Mertens v. Hewitt Associates, 508 U. S. 248 (1993), we construed the provision to authorize only “those categories of relief that were typically available in equity,” and thus rejected a claim that we found sought “nothing other than compensatory damages.” Id., at 256, 255. We elaborated on this construction of § 502(a)(3)(B) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), which involved facts similar to those in this case. Much like the “Acts of Third Parties” provision in the Sereboffs’ plan, the plan in Knudson reserved “ ‘a first lien upon any recovery, whether by settlement," } ]

[ { "docid": "2582044", "title": "", "text": "or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 507, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Where relief is otherwise available under Section 502(a)(1)(B), equitable relief under Section 502(a)(3) will not be “appropriate.” Varity Corp., 516 U.S. at 515, 116 S.Ct. 1065. However, where a plan does not conform with the requirements of ERISA, relief under the catchall provision may be appropriate. The phrase “appropriate equitable relief’ encompasses those categories of relief typically available in equity, such as injunction, mandamus, and restitution, but it does not include compensatory or punitive damages. See Mertens v. Hewitt Assocs., 508 U.S. 248, 256-58 & n. 8, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); id at 258 n. 8, 113 S.Ct. 2063 (“ ‘Equitable’ relief must mean something less than all relief.”) Thus, courts have found that equitable relief is appropriate in ERISA cases where it places participants “in basically the same financial position in which they would be if the employer had complied with the minimum requirements necessary for the [plan] to satisfy the accrual and vesting provisions of ERISA.” Carrabba v. Randalls Food Markets, Inc., 145 F.Supp.2d 763, 770-71 (N.D.Tex.2000), aff'd, 252 F.3d 721 (5th Cir.2001) (per curiam). III. DISCUSSION A. Remedies for the Backloading Violation 1. Benefits Formula for Participants Who Separated After 1981 The parties agree that based on the Court’s prior rulings, Hilton shall cap the Social Security offset so that the minimum accrual formula for participants who separated from service after 1981 is as follows: 1.4325% of Average Monthly Compensation (“AMC”) multiplied by Years of Benefit Service (“YBS”) up to a maximum of 25 years, plus 0.375% of AMC multiplied by YBS in excess of 25 years, up to 45 years. The parties further agree that AMC should be capped at $12,500 per month in accordance with applicable tax laws. As explained below, the parties disagree on whether further adjustments" }, { "docid": "10656875", "title": "", "text": "equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan[.]” As its terms suggest, section 1132(a)(3) does permit a plan participant to seek redress in her own behalf for a breach of fiduciary duty. E.g., Steinman, 352 F.3d at 1102. However, the language of this section also imposes an important limitation on the type of relief that is available: it allows only injunctive and “other appropriate equitable relief’; compensatory damages and other forms of legal relief are beyond the scope of the relief authorized. Mertens v. Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); see also, e.g., Buckley Dement, Inc. v. Travelers Plan Administrators of Ill, Inc., 39 F.3d 784, 787-88 (7th Cir.1994). The equitable relief authorized by section 1132(a)(3) includes “those categories of relief that were typically available in equity....” Mertens, 508 U.S. at 256, 113 S.Ct. at 2069 (emphasis in original). Injunctions, mandamus, and restitution are among those categories of relief. Ibid. Restitution, which holds out the prospect of monetary relief to the plaintiff, can be either legal or equitable in nature. Mondry v. Am. Fam. Mut. Ins. Co., supra, 557 F.3d at 806 (citing SEC v. Lipson, 278 F.3d 656, 663 (7th Cir.2002)). Given that only equitable remedies are available under section 1132(a)(3), restitution is permitted only when it may accurately be characterized as an equitable remedy. Great-West Life & Annuity Ins. Co. v. Knudson, supra, 534 U.S. at 212-18, 122 S.Ct. at 714-17. The classic example is when the defendant has wrongfully obtained or withheld the plaintiffs money or property, and a constructive trust or equitable lien is imposed to ensure that the defendant disgorges his ill-gotten gain and the plaintiff receives that to which he is entitled. Id. at 213-14, 122 S.Ct. at 714-15; see also Solis v. Current Dev. Corp., supra, 557 F.3d at 777-78; Mondry, 557 F.3d at 806-07; Health Cost Controls of Ill., Inc. v. Washington, 187 F.3d 703, 710-11 (7th Cir.1999); see also Amschwand v. Spherion Corp., 505 F.3d 342, 347-48 (5th Cir.2007). But Kenseth" }, { "docid": "23673608", "title": "", "text": "to enforce any provisions of this subchapter or the terms of the plan.” Caffey contends that “restitution as part of equitable relief is not pre-empt-ed by ERISA as it is not punitive or compensatory damages.” Reply Br. at 14. Therefore, Caffey argues, UNUM “should have been ordered to provide Caffey with insurance coverage-health and life[-]sinee it was its non-payment [of disability benefits] which caused Caffey to lose her health and life insurance benefits.” Reply Br. at 13-14. ERISA does not permit recovery for the kind of losses asserted by Caffey. Caffey’s claim is based upon the consequential losses she experienced as a result of UNUM’s failure to perform under the Plan. She asserts that she should be compensated for her lost health and life insurance benefits, because it was UNUM’s denial of disability insurance benefits that caused her to be unable to make the necessary premium payments on her other policies. Much as we sympathize with Caffey’s plight, such claims are not within the scope of “appropriate equitable relief’ under 29 U.S.C. § 1132(a)(3). See Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). In Mertens, the Supreme Court held that the term “equitable relief’ in 29 U.S.C. § 1132(a)(3) refers only to “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id. at 256, 113 S.Ct. 2063. Mertens made clear that compensatory and punitive damages are not considered “equitable relief’ for the purposes of 29 U.S.C. § 1132(a)(3). Id. at 255, 113 S.Ct. 2063. Although the Mertens Court did conclude that “equitable relief’ included restitution, the Supreme Court has recently explained that only traditionally “equitable” restitutionary remedies are available under this section. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 716, 151 L.Ed.2d 635 (2002). In order to give the term “equitable relief’ meaning, the Court explained, courts must “limit restitution to the return of identifiable funds (or property) belonging to the plaintiff and held by the defendant-that is, ... limit restitution to the form of" }, { "docid": "23094362", "title": "", "text": "a fiduciary seeking reimbursement pursuant to a benefit plan provision requiring reimbursement from an insured who recovered payments from a third party. The Owens court stated that the action was essentially “a breach of contract claim for monetary relief\" that did not fall within any of three traditional categories of equitable relief: injunction, mandamus, or restitution. Id. at 1261. The court thus ruled that the action was legal, rather than equitable, and not authorized under 29 U.S.C. § 1132(a)(3). Id. But see Harris Trust & Sav. Bank v. Provident Life & Accident Ins. Co., 57 F.3d 608, 615-16 (7th Cir.1995) (holding that employer’s claim for reimbursement of benefits pursuant to plan provision constituted action for restitution, which was equitable relief under § 1132(a)(3)(B)). In our view, Owens appears to be based on an unduly narrow reading of Mertens v. Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993), which held that 29 U.S.C. § 1132(a)(3) does not allow a suit by plan participants for money damages against nonfiduciaries who knowingly participate in a fiduciaiy’s breach of fiduciary duty. In Mertens, the Court reasoned that \"equitable relief,\" as used in § 1132(a)(3)(B), means those types of relief that were \"typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” 508 U.S. at 256, 113 S.Ct. at 2069 (emphasis in original); see also id. at 260, 113 S.Ct. at 2071 (stating that traditional equitable relief of restitution includes disgorgement of ill-gotten plan assets or profits). Relying on Mertens, the Owens court held that \"equitable relief” includes only injunction, mandamus, and restitution. See 122 F.3d at 1261 (stating that the Ninth Circuit has interpreted Mertens as allowing \"only the traditional forms of equitable relief under section 1132(a)(3)-injunction, mandamus, and restitution”) (citing Watkins v. Westinghouse Hanford Co., 12 F.3d 1517 (9th Cir.1993)). The Court in Mertens, however, did not imply that specific performance is unavailable under 29 U.S.C. § 1132(a)(3)(B). Because specific performance is a traditional form of equitable relief, see Owens-Illinois, Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185, 1189 (3d Cir.1979) (\"An action" }, { "docid": "16259231", "title": "", "text": "any provisions of this subchapter or the terms of the plan. 29 U.S.C. § 1132(a)(3) (emphasis added). Two seminal Supreme Court cases have interpreted the bounds of “appropriate equitable relief.” One of the Court’s first interpretations of § 502(a)(3) appeared in Mertens v. Hewitt Assoc., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). As the majority explains, Mertens involved an action brought under § 502(a)(3) by former employees who alleged that their retirement plan’s actuary breached its fiduciary duty; the Court denied monetary damages to the petitioners on the ground that the remedy sought was “nothing other than compensatory damages,” a remedy typically available at law and not equity. Id. at 255, 113 S.Ct. 2063. Outlining the test for “appro priate equitable relief,” the Court explained that § 502(a)(3) permits the award of remedies only for “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id. at 256, 257-58,113 S.Ct. 2063. Applying its language from Mertens in a § 502(a)(3) case alleging breach of contract, the Court further defined the bounds of equitable relief in Great-West, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635. There, the Court again denied relief, characterizing the reimbursement relief sought as an effort “to impose personal liability on [defendant] for a contractual obligation to pay money — relief that was not typically available in equity.” 534 U.S. at 210, 122 S.Ct. 708. The majority relies on these authorities to support its conclusion that back pay is not available as appropriate equitable relief. However, the majority reads too much into the Supreme Court’s holdings; neither Mertens nor Great-West expressly preclude back pay as an equitable remedy under ERISA. Instead, the Court left unresolved the precise issue before us today — -whether back pay constitutes appropriate equitable relief under § 502(a)(3). Consistent with Mertens and Great-West, our inquiry turns on whether the relief sought — here, back pay — was typically available in equity. In order to refine this inquiry, Greatr-West directs courts to “consult[ ] ... standard current works such as Dobbs," }, { "docid": "11236502", "title": "", "text": "(1987). Courts may not “infer [additional] causes of action in the ERISA context, since that statute’s carefully crafted and detailed enforcement scheme provides ‘strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ ” Mertens v. Hewitt Assocs., 508 U.S. 248, 254, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-47, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)). Under ERISA, the issue is not whether the statute bars a particular cause of action, but rather “whether the statute affirmatively authorizes such a suit.” Id. at 255 n. 5, 113 S.Ct. 2063. Section 1132(a)(3) provides that “[a] civil action may be brought ... (3) by a participant, beneficiary, or fiduciary ... (B) to obtain other appropriate equitable relief (i) to redress [any act or practice which violates any provision of this subchapter or the terms of the plan] or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). Under this provision, a plaintiff who is a “participant, beneficiary, or fiduciary” must prove both (1) that there is a remediable wrong, i.e., that the plaintiff seeks relief to redress a violation of ERISA or the terms of a plan, see Mertens, 508 U.S. at 254, 113 S.Ct. 2063; and (2) that the relief sought is “appropriate equitable relief,” 29 U.S.C. § 1132(a)(3)(B). A claim fails if the plaintiff cannot establish the second prong, that the remedy sought is “appropriate equitable relief’ under § 1132(a)(3)(B), regardless of whether “a remediable wrong has been alleged.” Mertens, 508 U.S. at 254, 113 S.Ct. 2063. The Supreme Court has made clear that “appropriate equitable relief’ refers to a “remedy traditionally viewed as ‘equitable.” ’ Id. at 255, 113 S.Ct. 2063; see also CIGNA Corp. v. Amara, — U.S. -, 131 S.Ct. 1866, 1878, 179 L.Ed.2d 843 (2011) (stating that “the term ‘appropriate equitable relief ” in § 1132(a)(3) refers to “ ‘those categories of relief that, traditionally speaking ... ‘were typically available in equity.’ ” (quoting Sereboff v. Mid" }, { "docid": "7927618", "title": "", "text": "of an assurance from the employer that it will provide an update”). Our conclusion that Chevron did not actively misinform the plaintiffs prior to April 22 compels us to reverse the judgment in favor of Plaintiffs Hord, Munn, and Rush who retired before then. In addition, we uphold the judgment in favor of Chevron with respect to the claims of Plaintiffs Whatley, Smith, and Moungovan since they, too, based their retirement decisions on statements made prior to April 22, 1999. We likewise affirm summary judgment on those grounds against Plaintiffs Carlock, Morton, Bateman, and Milton who retired before February 26, 1999. III. Chevron asserts the injunctive relief awarded by the district court to Plaintiffs Miller, Mathews, and Buchanan is precluded by ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3). In part, this section authorizes a plan “participant, beneficiary, or fiduciary” to bring a civil action “to obtain other appropriate equitable relief (i) to redress such violations [of ERISA] or (ii) to enforce any provisions of this sub-chapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3)(B); see also Varity, 516 U.S. at 510, 116 S.Ct. 1065 (“The words of subsection (3) ... are broad enough to cover individual relief for breach of a fiduciary obligation.”); Chappel v. Lab. Corp. of Am., 232 F.3d 719, 727 (9th Cir.2000) (“When a fiduciary breaches its duty and relief is not otherwise available under the statute, § 502(a)(3) of ERISA provides for individualized equitable relief.”). The “equitable relief’ to which section 502(a)(3) refers is limited “to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). As we have stated, “[i]n determining whether an action for equitable relief is properly brought under ERISA, we look to the ‘substance of the remedy sought ... rather than the label placed on that remedy.’ ” Westaff (USA) Inc. v. Arce, 298 F.3d 1164, 1166 (9th Cir.2002), quoting Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1528 n. 5 (9th Cir.1993). We apply" }, { "docid": "14563621", "title": "", "text": "because of the alleged breach of fiduciary duties by Hewitt Associates, an actuarial services company. 508 U.S. at 250-51, 113 S.Ct. 2063. The petitionei-, William Mertens, was one of a class of former Kaiser employees who sued Hewitt for breach of fiduciary duty. Id. The class also sued Hewitt as a non-fiduciary, claiming that ERISA § 502(a)(3) allowed a plan participant to sue a non-fiduciary and also permitted the court to order whatever equitable relief the court deemed necessary. Id. At the time, the Supreme Court had not interpreted the precise meaning of the phrase “other appropriate equitable relief’ as it is found in § 502(a)(3). Id. at 253-55 113 S.Ct. 2063. In a five to four opinion, Justice Scalia narrowly construed the phrase “other appropriate equitable relief’ as found in § 502(a)(3) as only permitting the categories of relief that were typically available in equity; those forms of relief such as injunctions, mandamus, and restitution. Mertens, 508 U.S. at 256-58, 113 S.Ct. 2063. In doing so, Justice Scalia acknowledged that the Court had not interpreted the precise phrase “other appropriate equitable relief’ in the context of ERISA’s § 502(a)(3), but that the Court had “construed the similar language of Title VII of the Civil Rights Act of 1964 (before its 1991 amendments) — ‘any other equitable relief as the court deems appropriate,’ 42 U.S.C. § 2000e~5(g) — to preclude ‘awards for compensatory or punitive damages.’ ” Id. at 255, 113 S.Ct. 2063 (citing United Slates v. Burke, 504 U.S. 229, 238, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992)). The Justice went on to conclude that it was appropriate to likewise limit the relief available under ERISA inasmuch as doing otherwise, would require us either to give the term a different meaning these than it bears elsewhere in ERISA, or to deprive of all meaning the distinction Congress drew between “equitable” and “remedial” relief in § 409(a), and between “equitable” and “legal” relief in the very same section of ERISA, see 29 U.S.C. § 1132(g)(2)(E); in the same sub-chapter of ERISA, see § 1024(a)(5)(C); and in the ERISA subchapter dealing" }, { "docid": "23673609", "title": "", "text": "Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). In Mertens, the Supreme Court held that the term “equitable relief’ in 29 U.S.C. § 1132(a)(3) refers only to “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id. at 256, 113 S.Ct. 2063. Mertens made clear that compensatory and punitive damages are not considered “equitable relief’ for the purposes of 29 U.S.C. § 1132(a)(3). Id. at 255, 113 S.Ct. 2063. Although the Mertens Court did conclude that “equitable relief’ included restitution, the Supreme Court has recently explained that only traditionally “equitable” restitutionary remedies are available under this section. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 716, 151 L.Ed.2d 635 (2002). In order to give the term “equitable relief’ meaning, the Court explained, courts must “limit restitution to the return of identifiable funds (or property) belonging to the plaintiff and held by the defendant-that is, ... limit restitution to the form of restitution traditionally available in equity.” Id.; see also Helfrich v. PNC Bank, Ky., Inc., 267 F.3d 477, 481 (6th Cir.2001), cert. denied, - U.S.-, 122 S.Ct. 1298, 152 L.Ed.2d 210 (2002). Plaintiffs claim for restoration of her lost health and life insurance benefits does not fall within this narrow category of relief. We therefore affirm the district court’s denial of Caffey’s claims for “equitable relief.” C. Statutory Penalties for Failure to Provide Summaiy Plan Description Caffey next appeals the district court’s denial of statutory penalties under 29 U.S.C. § 1132(c)(1) for UNUM’s alleged failure to provide her with a summary plan description and other documents. Section 1132(c)(1) provides for penalties of up to $100 per day, at the discretion of the district court, for a plan administrator’s failure or refusal “to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary ... within 30 days after such request.” “Because the statute expressly grants a district court discretion in imposing penalties for an employer’s" }, { "docid": "1480558", "title": "", "text": "502(a)(3) because the plaintiffs could not proceed under ERISA § 502(a)(1)(B). In short, Varity does not force a plaintiff to elect his remedy befoi-e filing a complaint, but rather prohibits a plaintiff from receiving equitable relief under ERISA § 502(a)(3) in addition to some other form of relief. Varity, 516 U.S. at 515, 116 S.Ct. 1065 ‘(stating that “where Congress elsewhere provided adequate relief for beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief would normally not be ‘appropriate.’ ”). Laurenzano is prohibited from obtaining relief under any other section of ERISA. Consequently, a remedy pursuant to § 503(a)(3) is appropriate. What is “equitable relief’? In 1993, a divided Supreme Court held that the phrase “equitable relief,” at least for suits alleging a breach of fiduciary duty, did not mean all the relief available in the courts of equity for a breach of trust (which included “legal relief,” such as money damages), but rather was limited to “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (5-4 decision), cited with approval in Armstrong v. Jefferson Smurfit Corp., 30 F.3d 11, 13 (1st Cir.1994); accord Drinkwater v. Metro. Life Ins. Co., 846 F.2d 821, 824 (1st Cir.1988) (“ ‘Other appropriate equitable relief should be interpreted to mean what it says — declaratory or injunctive relief, not compensatory and punitive damages.”). In Mertens, the majority refused to give “equitable relief’ the broad reading urged by the petitioners and adopted by the dissent. Mertens, 508 U.S. at 258, 113 S.Ct. 2063. It noted that “[ejquitable relief must mean something less than all relief.” Id. at 258 n. 8, 113 S.Ct. 2063. Thus, a court’s ability to fashion appropriate relief under ERISA is cabined somewhat. ERISA § 502(a)(3) affords Laurenzano equitable relief, such as injunction, mandamus, and restitution, as opposed to compensatory or punitive damages. The distinction between legal and equitable remedies is not simply the distinction between money and" }, { "docid": "4222514", "title": "", "text": "one, had (mis)construed Supreme Court precedent to limit severely the remedies available to plaintiffs suing fiduciaries under Section 1132(a)(3). See, e.g., LaRue v. Be Wolff, Boberg & Assocs., Inc., 450 F.3d 570, 575 (4th Cir.2006) (holding that Mertens v. Hewitt Assoc., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993), “and its progeny compel the conclusion that” “monetary relief’ for losses “sustained as a result of the alleged breach of fiduciary duties” “falls outside the scope of § 1132(a)(3)”), vacated on other grounds, 552 U.S. 248, 128 S.Ct. 1020, 169 L.Ed.2d 847 (2008). But with Amara, “[a] striking development,” the Supreme Court “expanded the relief and remedies available to plaintiffs asserting breach of fiduciary duty under [Section 1132(a)(3) ] and therefore seeking make-whole relief such as equitable relief in the form of ‘surcharge.’ ” Lee T. Polk, Statutory Provisions — Civil Remedies, 1 ERISA Practice and Litigation § 5:4 (West 2012). In Amara, employees filed a class action against an employer and pension plan, claiming that the employer’s conversion of a traditional defined benefit plan to a cash balance retirement plan “provided them with less generous benefits.” 131 S.Ct. at 1870. According to the plaintiffs, the employer’s disclosures and notices regarding the change and the new plan were defective, harmful, and contrary to ERISA. Id. The Supreme Court addressed whether broad remedies were available under Section 1132(a)(3), with its “other appropriate equitable relief’ language, stating: [Section 1132(a)(3) ] ... allows a participant, beneficiary, or fiduciary “to obtain other appropriate equitable relief” to redress violations of (here relevant) parts of ERISA “or the terms of the plan.” We have interpreted the term “appropriate equitable relief’ in [Section 1132(a)(3) ] as referring to “ ‘those categories of relief ” that, traditionally speaking (i.e., prior to the merger of law and equity) “ ‘were typically available in equity.’ ” The case before us concerns a suit by a beneficiary against a plan fiduciary (whom ERISA typically treats as a trustee) about the terms of a plan (which ERISA typically treats as a trust). It is the kind of lawsuit that, before the" }, { "docid": "16036442", "title": "", "text": "the plan.” 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 507, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Where relief is otherwise available under Section 502(a)(1)(B), equitable relief under Section 502(a)(3) will not be “appropriate.” Varity Corp., 516 U.S. at 515, 116 S.Ct. 1065. However, where a plan does not conform with the requirements of ERISA, relief under the catchall provision may be appropriate. The phrase “appropriate equitable relief’ encompasses those categories of relief typically available in equity, such as injunction, mandamus, and restitution, but it does not include compensatory or punitive damages. See Mertens v. Hewitt Assocs., 508 U.S. 248, 256-58 & n. 8, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); id. at 258 n. 8, 113 S.Ct. 2063 (“ ‘Equitable’ relief must mean something less than all relief.”) Thus, courts have found that equitable relief is appropriate in ERISA cases where it places participants “in basically the same financial position in which they would be if the employer had complied with the minimum requirements necessary for the [plan] to satisfy the accrual and vesting provisions of ERISA.” Carrabba v. Randalls Food Markets, Inc., 145 F.Supp.2d 763, 770-71 (N.D.Tex.2000), aff'd, 252 F.3d 721 (5th Cir.2001) (per curiam). III. DISCUSSION The parties have each filed briefs in support of their separate proposals for remedying the minimum accrual rate and vesting violations previously found by the Court. After Plaintiff filed its Reply Brief on Equitable Relief, Defendants filed a Motion for Leave to File Sur-Reply on Equitable Relief and for Expert Discovery in Advance of Remedies Hearing. Defendants ask the Court for permission to file a Surreply, which they attached to their motion, in order to rebut certain arguments raised by Plaintiff in his Reply regarding Defendants’ proposed remedies. Plaintiff opposes this request, arguing that Defendants’ motion is untimely and that the Surreply merely restates arguments that were or could have been raised in Defendants’ Response Brief on Equitable Relief. While the Court notes that surreplies are generally disfavored, Plaintiffs Reply Brief does contain detailed criticisms of Defendants’ proposals as well as a supplemental declaration from its" }, { "docid": "20304553", "title": "", "text": "Corp. v. Twombly, 550 U.S. 544, 555, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and alteration omitted). Wise’s fiduciary breach claim states conclusions about the Plan Administrators’ alleged fiduciary breach — including assertions that the Plan Administrators failed to investigate, consult with qualified medical experts, or evaluate claims fairly — without alleging facts tending to show that any claim besides Wise’s was mishandled or that the result of any such mishandling caused plan-wide injury. Accordingly, the district court properly dismissed Wise’s second claim. IV In her third claim, Wise seeks equitable relief under 29 U.S.C. § 1132(a)(3) in the form of an award of past and future benefits, removal of the Plan Administrators as plan fiduciaries, interest, attorney’s fees, and costs. The complaint asserts that such relief is appropriate in equity because the remedies available to Wise at law are inadequate. The district court dismissed this claim as “duplicative of[Wise’s] request for past and future long-term disability benefits.” Section 1132(a)(3) is a “catchall” or “safety net” designed to “offer[ ] appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Because removal of the ERISA fiduciary is an available remedy under §§ 1109(a) and 1132(a)(2), Wise may not resort to this equitable catchall provision to seek the same relief. See id. at 515, 116 S.Ct. 1065(“[W]here Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ”). Wise’s “equitable” claim for recovery of past and future benefits is likewise barred. Money damages are “the classic form of legal relief,” and are not an available remedy under ERISA’s equitable safety net. Mertens v. Hewitt Assocs., 508 U.S. 248, 255, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (reading the “other appropriate equitable relief’ language in § 1132(a)(3) to preclude an award of compensatory damages). The district court did not err in concluding that all of the relief Wise" }, { "docid": "16259230", "title": "", "text": "Douglas Corp., No. 94-CV-633-H, 2002 WL 31386076, at *6 (N.D.Okla. Sept.25, 2002) CMillsap II). However, the district court denied McDonnell Douglas’ motion to preclude back pay, determining that the plaintiffs’ claim for back pay was equitable in nature. Id. at *5. On interlocutory appeal, we are limited to the following certified question: [Wjhether, in this ERISA § 510 case and as a result of Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), back pay (and, as a result, any other damages based upon back pay) are available as “appropriate equitable relief’ to the class members pursuant to ERISA § 502(a)(3). (Maj. Op. at 1248.) ERISA § 502(a)(3), under which class plaintiffs seek relief, provides: A civil action may be brought — (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. 29 U.S.C. § 1132(a)(3) (emphasis added). Two seminal Supreme Court cases have interpreted the bounds of “appropriate equitable relief.” One of the Court’s first interpretations of § 502(a)(3) appeared in Mertens v. Hewitt Assoc., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). As the majority explains, Mertens involved an action brought under § 502(a)(3) by former employees who alleged that their retirement plan’s actuary breached its fiduciary duty; the Court denied monetary damages to the petitioners on the ground that the remedy sought was “nothing other than compensatory damages,” a remedy typically available at law and not equity. Id. at 255, 113 S.Ct. 2063. Outlining the test for “appro priate equitable relief,” the Court explained that § 502(a)(3) permits the award of remedies only for “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id. at 256, 257-58,113 S.Ct. 2063. Applying its language from Mertens in a § 502(a)(3) case alleging" }, { "docid": "2582043", "title": "", "text": "at 82. The Court also declined to rule on Plaintiffs claim that Hilton had improperly revised the Plan records since 2002, finding that the parties had not adequately addressed this issue in their briefs. II. LEGAL STANDARD Section 502(a)(1)(B) of ERISA allows a participant or beneficiary to bring a civil action “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.” 29 U.S.C. § 1132(a)(1)(B). Pursuant to this provision, the Court may order that participants’ benefits be recalculated consistent with the terms of the Plan. See Frommert v. Conkright, 433 F.3d 254, 270 (2d Cir.2006) (“The relief that the plaintiffs seek, recalculation of their benefits consistent with the terms of the Plan, falls comfortably within the scope of § 502(a)(1)(B).”) ERISA also has a “catchall” provision, Section 502(a)(3), which allows a participant, beneficiary, or fiduciary to “(A) enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 507, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Where relief is otherwise available under Section 502(a)(1)(B), equitable relief under Section 502(a)(3) will not be “appropriate.” Varity Corp., 516 U.S. at 515, 116 S.Ct. 1065. However, where a plan does not conform with the requirements of ERISA, relief under the catchall provision may be appropriate. The phrase “appropriate equitable relief’ encompasses those categories of relief typically available in equity, such as injunction, mandamus, and restitution, but it does not include compensatory or punitive damages. See Mertens v. Hewitt Assocs., 508 U.S. 248, 256-58 & n. 8, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); id at 258 n. 8, 113 S.Ct. 2063 (“ ‘Equitable’ relief must mean something less than all relief.”) Thus, courts have found that equitable relief is appropriate" }, { "docid": "11236503", "title": "", "text": "this provision, a plaintiff who is a “participant, beneficiary, or fiduciary” must prove both (1) that there is a remediable wrong, i.e., that the plaintiff seeks relief to redress a violation of ERISA or the terms of a plan, see Mertens, 508 U.S. at 254, 113 S.Ct. 2063; and (2) that the relief sought is “appropriate equitable relief,” 29 U.S.C. § 1132(a)(3)(B). A claim fails if the plaintiff cannot establish the second prong, that the remedy sought is “appropriate equitable relief’ under § 1132(a)(3)(B), regardless of whether “a remediable wrong has been alleged.” Mertens, 508 U.S. at 254, 113 S.Ct. 2063. The Supreme Court has made clear that “appropriate equitable relief’ refers to a “remedy traditionally viewed as ‘equitable.” ’ Id. at 255, 113 S.Ct. 2063; see also CIGNA Corp. v. Amara, — U.S. -, 131 S.Ct. 1866, 1878, 179 L.Ed.2d 843 (2011) (stating that “the term ‘appropriate equitable relief ” in § 1132(a)(3) refers to “ ‘those categories of relief that, traditionally speaking ... ‘were typically available in equity.’ ” (quoting Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 361, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006))). Because “ERISA abounds with the language and terminology of trust law,” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Court relies heavily on trust law doctrine in interpreting ERISA, see, e.g., Conkright v. Frommert, 559 U.S. 506, 512, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010) (stating that, when “ERISA’s text does not directly resolve the matter,” the Court has “looked to ‘principles of trust law for guidance” (quoting Firestone, 489 U.S. at 109, 109 S.Ct. 948)). In interpreting § 1132(a)(3), the Court has distinguished between equitable and legal relief. According to the Court, Congress intended to limit the relief available under § 1132(a)(3) to “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages),” Mertens, 508 U.S. at 256, 113 S.Ct. 2063, and did not authorize any legal remedies, even though an equity court was empowered to grant such" }, { "docid": "10656874", "title": "", "text": "under section 1109(a), but she may do so only in a representative capacity on behalf of the plan, not in her own behalf. See Varity Corp. v. Howe, supra, 516 U.S. at 515, 116 S.Ct. at 1079 (section 1132(a)(2) “does not provide a remedy for individual beneficiaries”); Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140-44, 105 S.Ct. 3085, 3089-91, 87 L.Ed.2d 96 (1985); Magin v. Monsanto Co., 420 F.3d 679, 687 (7th Cir.2005); Steinman v. Hicks, 352 F.3d 1101, 1102 (7th Cir.2003); Plumb v. Fluid Pump Serv., Inc., 124 F.3d 849, 863 (7th Cir. 1997). Kenseth has filed suit to recover for the injuries that Dean has caused to her rather than to the plan as a whole. She therefore must be suing under the statute’s catch-all provision, section 1132(a)(3). That provision authorizes a civil suit by a plan participant or beneficiary (and also a fiduciary) “(A) to enjoin any act or practice which violates any provision or this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan[.]” As its terms suggest, section 1132(a)(3) does permit a plan participant to seek redress in her own behalf for a breach of fiduciary duty. E.g., Steinman, 352 F.3d at 1102. However, the language of this section also imposes an important limitation on the type of relief that is available: it allows only injunctive and “other appropriate equitable relief’; compensatory damages and other forms of legal relief are beyond the scope of the relief authorized. Mertens v. Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); see also, e.g., Buckley Dement, Inc. v. Travelers Plan Administrators of Ill, Inc., 39 F.3d 784, 787-88 (7th Cir.1994). The equitable relief authorized by section 1132(a)(3) includes “those categories of relief that were typically available in equity....” Mertens, 508 U.S. at 256, 113 S.Ct. at 2069 (emphasis in original). Injunctions, mandamus, and restitution are among those categories of relief. Ibid. Restitution, which holds out the" }, { "docid": "13958652", "title": "", "text": "ruling followed by a summary order, the district court granted the motion. Ms. Callery now appeals. Discussion We review the district court’s grant of judgment on the pleadings pursuant to Rule 12(c) under the same standard of review applicable to a Rule 12(b)(6) motion. Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th Cir.2000). Thus review is de novo, applying the same standard as the district court. Id. All well-pleaded allegations in the complaint are accepted as true and construed in the light most favorable to the plaintiff. Id. A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Section 502 authorizes a civil action “by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates ... the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of ... the terms of the plan.” 29 U.S.C. § 1132(a)(3). The only issue is whether ERISA’s limitation of remedies to “appropriate equitable relief’ allows monetary relief in these circumstances. A. Appropriate Equitable Relief The Supreme Court has addressed the meaning of “appropriate equitable relief’ under § 502(a)(3) in several opinions, including Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 209-21, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), and Mertens v. Hewitt Associates, 508 U.S. 248, 251-63, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). In both cases, the Court unequivocally rejected attempts to impose personal liability for a contractual obligation to pay money under § 502(a)(3), holding that the term “equitable relief’ in § 502(a)(3) refers to “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Mertens, 508 U.S. at 256, 113 S.Ct. 2063; see also Great-West, 534 U.S. at 210, 122 S.Ct. 708. In Mertens, a class of former steel industry employees participating in" }, { "docid": "16036441", "title": "", "text": "are entitled. II. LEGAL STANDARD Section 502(a)(1)(B) of ERISA allows a participant or beneficiary to bring a civil action “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.” 29 U.S.C. § 1132(a)(1)(B). Pursuant to this provision, the Court may order that participants’ benefits be recalculated consistent with the terms of the Plan. See Frommert v. Conkright, 433 F.3d 254, 270 (2d Cir.2006) (“The relief that the plaintiffs seek, recalculation of their benefits consistent with the terms of the Plan, falls comfortably within the scope of § 502(a)(1)(B).”) ERISA also has a “catchall” provision, Section 502(a)(3), which allows a participant, beneficiary, or fiduciary to “(A) enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 507, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Where relief is otherwise available under Section 502(a)(1)(B), equitable relief under Section 502(a)(3) will not be “appropriate.” Varity Corp., 516 U.S. at 515, 116 S.Ct. 1065. However, where a plan does not conform with the requirements of ERISA, relief under the catchall provision may be appropriate. The phrase “appropriate equitable relief’ encompasses those categories of relief typically available in equity, such as injunction, mandamus, and restitution, but it does not include compensatory or punitive damages. See Mertens v. Hewitt Assocs., 508 U.S. 248, 256-58 & n. 8, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); id. at 258 n. 8, 113 S.Ct. 2063 (“ ‘Equitable’ relief must mean something less than all relief.”) Thus, courts have found that equitable relief is appropriate in ERISA cases where it places participants “in basically the same financial position in which they would be if the employer had complied with the minimum requirements necessary for the [plan] to" }, { "docid": "4385602", "title": "", "text": "in Westvaeo stock, or the difference between the valuation on October 21, 1997 and March 2,1999. The district court dismissed this claim on summary judgment, holding that Rego’s requested relief was not fairly classifiable as equitable, which is required for a claim to proceed under § 1132(a)(3). We agree. Rego begins by arguing that, at common law, actions for breach of fiduciary duty by a trustee could only be brought in equity. See Austin Wakeman Scott & William Franklin Fratcher, The Law of Trusts § 197 (4th ed.1988). He therefore contends that under § 1132(a)(3) any “remedy, when sought for breach of fiduciary duty, is always an equitable remedy.” The Supreme Court has squarely rejected this argument, holding that it would read the statute to render the modifier “equitable” superfluous, since “all relief available for breach of trust could be obtained from a court of equity.” Mertens v. Hewitt Assocs., 508 U.S. 248, 257, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (emphasis in original). Defining equitable relief, in other words, as “ “whatever relief a common-law court of equity could provide in such a case’ would limit the relief not at all.” Mertens, 508 U.S. at 256, 113 S.Ct. 2063 (emphasis in original). Rather, § 1132(a)(3) authorizes only “those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id. at 257, 113 S.Ct. 2063 (emphasis in original). And the scope of this relief is emphatically not defined by reference to the “many situations” at common law “in which an equity court could establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority.” Id. at 256, 113 S.Ct. 2063 (internal quotation omitted). Under Mertens, then, the relevant question is not whether a given type of case would have been brought in a court of equity, but whether a given type of relief was available in equity courts as a general rule. And the relief Rego seeks was not available. In fact, “monetary relief for all losses ... sustained as a result of [an]" } ]

[ { "docid": "1069803", "title": "", "text": "as if it were later filed.”) (quoting Brewer v. Am. Battle Monuments Comm’n, 814 F.2d 1564, 1569-70 (Fed.Cir.1987)). II. EAJA provides that a court shall award to a prevailing party ... fees and other expenses, ... incurred by that party in any civil action, ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). By operation of Section 506, a “civil action” now includes an appeal to this Court, and an action against the Secretary of Veterans Affairs is an action against the United States for EAJA purposes. The appellant’s application was timely filed and, as the Secretary concedes, the appellant is a prevailing party. Secretary’s Response at 2; see Shalala v. Schaefer, — U.S. -, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Stillwell, supra. Also, the Secretary has not alleged that any “special circumstances” exist which make a fee award unjust. Ibid. Therefore, the only issue left to be determined in evaluating the appellant’s EAJA application is whether the government’s position was “substantially justified.” A. The government has the burden of showing that its position was substantially justified in order to avoid paying the attorney fees and expenses. Essex Electro Engineers, Inc. v. United States, 757 F.2d 247, 252 (Fed.Cir.1985); Broad Avenue Laundry & Tailoring v. United States, 693 F.2d 1387, 1391 (Fed.Cir.1982). As a result of a 1985 amendment, the “position of the United States” includes not only “the position taken by the United States in the civil action, [but also] the action or failure to act by the agency upon which the civil action is based ...” 28 U.S.C. § 2412(d)(2)(D). A position by the government is substantially justified if “‘a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.’ ” Stillwell, 6 Vet.App. at 302 (quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 2550 n. 2, 101 L.Ed.2d 490 (1988))." } ]

[ { "docid": "2712374", "title": "", "text": "to make the appropriate amendments. Lastly, I express a personal hope that attorneys who volunteer for pro bono representation through The Veterans Consortium Pro Bono Program, receive pro bono credit from their state bar for that representation, and are granted EAJA fees, would donate those fees to the Consortium so that they may further assist indigent veterans in finding representation before this Court. In conclusion, regardless of what evidence is used to determine whether the Secretary’s position was substantially justified, I do not believe that there are grounds for an award of EAJA fees in this case under any circumstances. GREENE, Judge, with whom HOLDAWAY, Judge, joins, dissenting: I join Judge Holdaway’s dissent. It provides a clear view of the landscape of this case and offers a well-stated observation concerning the general posture of Equal Access to Justice Act (EAJA) applications filed with this Court. I write separately to stress my disagreement with the majority’s reliance on the failure of the Board to provide an adequate statement of reasons or bases for not addressing VA regulation 38 C.F.R. § 21.3032(b)(3) (1998). The majority opinion asserts that the Secretary was not substantially justified in this case because the Board’s 1998 decision lacked an adequate statement of reasons or bases. It concluded that the Board should have discussed the potential impact of VA regulation 38 C.F.R. § 21.3032(b)(3) on extending for good cause Mr. Cullens’ late filing of enrollment certificates to perfect his claims for educational assistance. However, in my view, the settlement agreement in this case eliminated this issue, if it indeed ever existed. In this case, the settlement agreement manifests the parties’ intent that Mr. Cul-lens would be awarded benefits based upon a change in the law. Pursuant to that settlement agreement, the appeal filed to this Court, and the attending issues arising from the 1998 Board decision were dismissed with prejudice. With that disposition, there should not have been any further areas of controversy requiring litigation. Indeed, in my view, by agreeing to the terms of the settlement, Mr. Cullens waived any arguments of error in the Board decision." }, { "docid": "13472055", "title": "", "text": "or otherwise obtained from reports filed [with the FEC], in newspapers, magazines, books or other similar communications is permissible as long as the principle purpose of such communications is not to communicate any contributor information listed on such reports for the purpose of soliciting contributions or for other commercial purposes. JACOBS, Circuit Judge, concurring in part and dissenting in part: I concur with the majority as to the timeliness of the appellant’s fee application. I respectfully dissent because I do not believe that the district court abused its discretion in finding that the Commission was substantially justified in pursuing its position on the merits. The Commission lost its claim on the merits — in the only way it could lose on the merits of that claim — upon a finding that it adopted an unreasonable interpretation of the “commercial purposes” provision of 2 U.S.C. § 438(a)(4) (1988) and its corresponding regulation, 11 C.F.R. § 104.15(c) (1991). See Federal Election Comm’n v. Political Contributions Data, Inc., 943 F.2d 190, 196 (2d Cir.1991). Nevertheless, PCD was not entitled to fees if, inter alia, “the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A) (1988) (“EAJA”). Substantial justification (like the ruling on the merits) is a question of reasonableness. Pierce v. Underwood, 487 U.S. 552, 564 n. 2, 108 S.Ct. 2541, 2549 n. 2, 101 L.Ed.2d 490 (1988) (“if a reasonable person could think it correct”). However, in the EAJA stage, the question is whether it was unreasonable for the Commission to litigate the reasonableness of its statutory interpretation. The EAJA reasonableness question is therefore considered from a different point of view: “not what the law now is, but what the Government was substantially justified in believing it to have been.” Id. at 561, 108 S.Ct. at 2548. Whether the Commission was substantially justified is a “historical” question. Id. The majority (a) casts the issue as “the extent to which we are bound” by the unreasonableness findings of the previous panel; (b) adopts the Ninth Circuit rule that the EAJA panel is so bound if the first panel carefully considered" }, { "docid": "2712363", "title": "", "text": "was substantially justified in its position”, the Court today holds that when the Secretary “offer[s] this Court neither argument nor evidence” that his position was substantially justified after the appellant alleges that it was not, that default alone can provide a basis for the Court to grant an application for attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA). Ante at 243. HOLDAWAY, Judge, with whom GREENE, Judge, joins, dissenting: I respectfully dissent with the holding of the majority. This matter was taken before the en banc court to decide what evidence the Court should consider in determining whether the Secretary’s position was substantially justified. In the original panel decision, which has since been withdrawn, the majority held that the Court had drifted from the “totality of the circumstances” test set forth by this Court in Stillwell v. Brown, 6 Vet.App. 291 (1994). The dissent opined that the Court had not drifted from Stilhvell but merely evolved into a narrower body of evidence the Court would consider in determining substantial justification. Unfortunately, in debating the intricacies of their theories, both sides lost sight of the facts of this particular case. While such a debate may make an enlightening topic for a law school class or a law review article, the purpose of an appellate court is much more practical: to apply the law to the facts of the case at hand. The issue before the Court is whether the appellant is entitled to reimbursement under EAJA. As the majority correctly stated, the Secretary may show, as an affirmative defense, that his positions before this Court and the Board were substantially justified. In my opinion, under any test, whether it be the en banc’s majority opinion, the panel’s majority opinion, or the panel’s dissenting opinion, the Secretary has shown that his position was substantially justified. Here, the Secretary agreed to award benefits based on a change in the law. Whether or not the appellant would have been entitled to benefits but for the change in the law is wholly irrelevant. Any arguments or claims" }, { "docid": "12692273", "title": "", "text": "or nature of the administrative error.” McCormick, supra. Accordingly, in the instant case, because the Court’s remand was expressly predicated, in part, on the Court’s finding that the Board erred under 38 U.S.C. § 7104(a) and (d)(1) in not discussing § 4.49, see Abbey I, 2001 WL 1181652, at *2, the appellant was a prevailing party for EAJA purposes. See 28 U.S.C. § 2412(d)(1)(A); Sumner and McCormick, both supra. The Secretary does not defend his position in response to the appellant’s allegation that the Secretary’s position was not substantially justified, and the Secretary does not assert the affirmative defense that special circumstances make an award unjust. See Cullens, supra (noting that “[o]nce an appellant has alleged a lack of substantial justification, the burden shifts to the Secretary to prove that VA was substantially justified in its administrative and litigation positions”); McCormick, 16 Vet.App. at 412 (determining that, “[u]n-der the EAJA, the Secretary has affirmative defenses to a fee award, one of which is to demonstrate that his position at both the administrative (BVA) and litigation (Court) stages was ‘substantially justified’ ”); Chesser v. West, 11 Vet.App. 497, 502 (1998) (noting that “ ‘[sjpecial circumstances’ is an affirmative defense as to which the government bears the burden of raising and demonstrating that such special circumstances militate against an EAJA award”); Cook v. Brown, 6 Vet.App. 226, 237 (1994) (concluding that Court need not address whether Secretary’s position was “substantially justified” when Secretary did not assert such a defense but expressly conceded that issue), aff'd, 68 F.3d 447 (Fed.Cir.1995). Hence, the only remaining issue is the appropriate EAJA fee to be paid for the work of non-attorney-practitioner Stewart, who, according to records of the Court, has been certified to practice before this Court under the supervision of Mr. Stichman in accordance with subsection (b)(1) of Rule 46. A. VBA § 403 New VBA § 403 provides: The authority of the United States Court of Appeals for Veterans Claims to award reasonable fees and expenses of attorneys under section 2412(d) of title 28, United States Code, shall include authority to award fees and" }, { "docid": "15790064", "title": "", "text": "reasons or bases. See ZP, supra (Court awarded EAJA fees and expenses upon finding Secretary’s position at administrative stage not substantially justified where Court on merits had vacated BVA decision on appeal based on Board’s failure to provide adequate statement of reasons or bases pursuant to 38 U.S.C. § 7104(d)(1) for the Board’s denial of rating-increase claim, and Court cited, inter alia, Gilbert, supra, which had been decided over nine months before Board decision vacated by the Court); see also Elcyzyn, supra (to same effect). Although the remand motion granted by the Court cited to the Court’s post-BVA-decision opinion in Holliday, 14 Vet.App. at 286, for the principle “that all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA’s enactment” (Mot. at 2), Karnas, as our foregoing discussion concludes, clearly required a remand when the law changed while a case was pending before the Board, whereas Holliday concerned a situation where the BVA decision had predated the VCAA. In the instant case, the BVA decision postdated the enactment of the VCAA, and remand was necessitated by the Board’s failure to comply with 38 U.S.C. § 7104(a), (c), and (d)(1) and well-established Court precedent, see Herlehy, Sanden, Karnas, and Gilbert, all supra, by addressing the applicability of the new law enacted in the VCAA prior to the Board decision. The instant case is therefore indistinguishable from ZP and Elcyzyn. Furthermore, the Secretary’s argument based on Holliday ignores the Board’s failure to abide by section 7104(c) and G.C. Prec. 11-00. Finally, given the General Counsel’s BVA-binding precedential opinion about VCAA general applicability, the Board was obliged, at the time of its decision here, to address whether the VCAA’s change of the law regarding the Secretary’s duty to notify (in 38 U.S.C. § 5103) and duty to assist (in 38 U.S.C. § 5103A, superceding section 5107(a)) was more favorable to the appellant than the pre-VCAA law on those matters. See Karnas, supra. Therefore, we hold that the Secretary has failed to carry his burden of demonstrating that his position at the administrative stage was substantially justified" }, { "docid": "15790066", "title": "", "text": "when the Board failed to comply with the existing statutory requirements of sections 7104(a), (c), and (d)(1). See Swiney, Locker, Stillwell, and Karnas, all supra. The Court thus need not address the justification for the Secretary’s position at the litigation stage, and will grant the appellant’s EAJA application in the amount requested. See Elcyzyn, supra. III. Conclusion Upon consideration of the foregoing analysis and the pleadings of the parties, the Court grants the appellant’s EAJA application in the amount of $2,956.87. APPLICATION GRANTED. HOLDAWAY, Judge, concurring: I concur with both the principal opinion and also the views expressed by Judge Ivers. I, however, am not prepared to say that the “failure” of the Board to discuss the VCAA will, in all cases, automatically constitute a lack of substantial justification. When that law was passed, this Court struggled for a time with its full implications. We resolved this by remanding most cases even though we recognized there were cases where the applicability of the VCAA was problematic. We should not require the Board to be prescient as a condition precedent of being “substantially justified.” If the Secretary offers a defense of substantial justification in a case where the Board “failed” to discuss the VCAA, I, for one, will carefully consider the arguments in the context of the facts of the particular case. IVERS, Judge, concurring: The administrative error in this case, upon which the remand was predicated, was patent. The Board’s decision postdated the effective date of the VCAA, so failure to address the applicability of the VCAA was clearly administrative error. Furthermore, the Secretary moved for a remand because the Board did not address the VCAA with respect to the appellant’s claim for TDIU. As is pointed out in the opinion, had the Board’s decision pre-dated the enactment of the VCAA, see, e.g., Vaughn v. Principi, 15 Vet.App. 277 (2001), failure to address the VCAA would, of course, not have been administrative error. When, as in this matter, administrative error is facially apparent, the Secretary acknowledges the error in a motion for remand, and the Court orders a remand based" }, { "docid": "2676521", "title": "", "text": "CLEVENGER, Circuit Judge. Appellant, John T. Bowey, seeks review of a decision of the United States Court of Appeals for Veterans Claims, denying his application for attorney’s fees and expenses under the Equal Access to Justice Act (“EAJA”). The EAJA allows a prevailing party in a suit against the United States to recover attorney’s fees, unless the position of the government was substantially justified. See 28 U.S.C. § 2412(d) (1994). On appeal, Bowey asserts that the Court of Appeals for Veterans Claims misinterpreted 28 U.S.C. § 2412(d) in concluding that the government’s position was substantially justified in light of a decision that was handed down after the government adopted its legal position. Because we agree that a determination of substantial justification must be based on the record that existed at the time the government adopted its legal position, we vacate the Court of Appeals for Veterans Claims’ decision and remand this case for further proceedings. I Bowey served on active duty from February 1944 to May 1946 and July 1946 to July 1948. In 1992, Bowey filed a claim for service connection for rectal cancer, which he claimed was caused by in-service exposure to ionizing radiation during the occupation of Nagasaki, Japan. Bowey’s claim was denied by the Board of Veterans’ Appeals (“Board”) in 1996. See In re Bowey, No. C-12-016-705, slip op. at 6 (1996). In its opinion, the Board properly noted that claims based on ionizing radiation are governed by 38 U.S.C. § 1112(c) (1994) and 38 C.F.R. § 3.311. However, the Board did not consider, in its analysis, all of the six factors identified in 38 C.F.R. § 3.311(e) as “[factors to be considered in determining whether a veteran’s disease resulted from exposure to ionizing radiation.” Bowey appealed the Board’s decision to the Court of Appeals for Veterans Claims, arguing that the Board erred as a matter of law by failing to consider all six of the section 3.311(e) factors. While Bowey’s appeal was pending, the Court of Appeals for Veterans Claims decided Hilkert v. West, which held that the Board was required by law to consider" }, { "docid": "21541809", "title": "", "text": "STEINBERG, Judge, filed the opinion of the Court in which KRAMER, Judge, joined. IVERS, Judge, filed an opinion concurring in part and dissenting in part. STEINBERG, Judge: On March 22,1993, the appellant, Vietnam-eña veteran Charles E. Thompson, filed a Notice of Appeal (NOA) from a March 23, 1992, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. The Secretary has moved the Court to dismiss this appeal on the ground that the appellant has failed to file a timely NOA. The appellant has moved to dismiss the Secretary’s motion and for an award of litigation costs and attorney fees. The question of the Court’s jurisdiction over the appeal was referred to this panel for disposition. For the reasons that follow, the Court will deny the appellant’s motions to dismiss, grant the Secretary’s motion, and dismiss the appeal for want of a timely filed NOA. The Court will also deny the appellant’s motion for costs and fees. Even if the Court could construe the appellant’s motion as an application for an award of reasonable attorney fees and expenses under the governing law, the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), he has not alleged that he is a “prevailing party” as is required. 28 U.S.C. § 2412(d)(1)(A); see Stillwell v. Brown, 6 Vet.App. 291 (1994); cf. March v. Brown, 7 Vet.App. 163, 166-70 (1994) (concluding that a pro se, nonattorney, applicant’s claim for fees under section 2412(d) must be denied because a pro se litigant is not entitled to attorney fees although, where other EAJA requirements are satisfied, a pro se litigant may, if a prevailing party, recover expenses “customarily charged to the client where the case is tried”). I. Background The appellant appended to his NOA a copy of a January 22, 1993, decision of a Department of Veterans Affairs (VA) regional office (RO) advising him that on March 23, 1992, the BVA had denied his claim for service connection for an acquired psychiatric disorder. In June 1993, the Court ordered the appellant to show" }, { "docid": "18540207", "title": "", "text": "IVERS, Judge: On August 16, 1994, this Court disposed of the merits of this case by a panel opinion, which vacated and remanded the Board of Veterans’ Appeals (Board or BVA) decision. This Court found that the BVA had failed to assist the appellant in developing her claim after she submitted documents supporting her status as claimant, and that the BVA had failed to articulate reasons and bases for its determination that the appellant was aware that the Republic of Philippines did not recognize common-law marriages. See Sandoval v. Brown, 7 Vet.App. 7 (1994). On December 8, 1994, the appellant filed an application for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Court has jurisdiction to award attorney fees pursuant to section 506 of the Federal Courts Administration Act, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992) (found at 28 U.S.C. § 2412 note), which amended 28 U.S.C. § 2412(d)(2)(F) to make EAJA applicable to this Court. For the reasons set forth below, the Court will grant the appellant’s application for attorney fees and expenses. I. BACKGROUND On August 16,1994, this Court vacated the Board’s November 18, 1991, decision after finding that the BVA had failed to assist the appellant in developing her claim for recognition as the deceased veteran’s surviving spouse for the purpose of establishing entitlement to death benefits and had failed to provide reasons and bases for its determination. The appellant filed her EAJA application on December 8, 1994, for fees and expenses in the amount of $14,772.48. The appellant contended in her application that she was the “prevailing party,” that her net worth does not exceed $2,000,000, and that the position of the Secretary was not substantially justified. Appellant’s Application for Attorney Fees and Expenses (Appl.) at 2-4. The Secretary filed his brief in response on April 25,1995, stating: The following issues are not contested by the Secretary: Appellant’s representations concerning her net worth for purposes of 28 U.S.C. § 2412(d)(2)(G); Appellant’s receipt of a “final judgment” within the meaning of 28" }, { "docid": "2712351", "title": "", "text": "in a second major litigation’” in Pierce (487 U.S. at 562-62, 108 S.Ct. 2541 (quoting Hensley, supra )), it did so in the context of adopting the “abuse of discretion” standard of review for a district court’s determination whether EAJA fees should be awarded. The Supreme Court did not lower or remove the obligation of the court responsible for making the threshold substantial justification determination. III. The Need to Re-Anchor our Jurisprudence Notwithstanding the Supreme Court’s guidance and our decision in Stillwell, we have avoided our duty to make a determination as to substantial justification based upon the “totality of the circumstances” in EAJA determinations where the substantive claims have been remanded. We have inexplicably concluded that the product of the parties’ negotiations during the litigation phase of the claim, e.g., a joint motion for remand, is not only relevant to the justification of the Secretary’s position at the administrative stage, but determinative. If the Secretary’s position was justified with respect to that issue, we will deign to look no further. Such a decisional template certainly has its advantages in terms' of requiring less judicial resources, but it is inconsistent with Stillwell and Pierce, and support is not readily apparent in existing statutes or jurisprudence from the Supreme Court or the Federal Circuit. Although such joint motions and remand orders certainly can provide guidance to the Court in making “substantial justification” determinations, there is simply no support for the proposition that the analysis must end there. In fact, it is clear from the Supreme Court’s opinion in Pierce, swpra, that the analysis should not and cannot end there. Since the case before us today was settled, not remanded, this is not the case to re-anchor our EAJA remand jurisprudence. However, it has become clear to me that our drift with respect to substantial justification determinations in remanded claims must be corrected in a future case. KRAMER, Chief Judge, concurring: Although I concur in the majority opinion, I write separately to express my disagreement with the views set forth in Judge Farley’s concurring statement regarding the appropriate standard for determining whether" }, { "docid": "15790059", "title": "", "text": "the situation described in Vaughn v. Principi, 15 Vet.App. 277, 280 (2001). In Vaughn, in an appeal involving a BVA decision issued before the VCAA’s enactment on November 9, 2000, the Court held that the appellant was precluded from achieving prevailing-party status “based on obtaining a remand solely for readjudication in light of the enactment of the VCAA”. The critical distinction between Vaughn and the instant case is that the Board decision in Vaughn predated the enactment of the VCAA, whereas the Board decision in this case postdated such enactment. As the Court stated in Vaughn, “[g]iven that the sole basis for the remand was the enactment of the VCAA and that the Board’s disposition of this case occurred before the enactment of the VCAA, there could not have been any Board error with respect to the VCAA.” Id. at 279. By contrast, where the Board’s disposition of a case occurs after the enactment of the VCAA, there can, in fact, be Board error with respect to a failure to address the VCAA. We thus hold, under this Court’s binding precedent, that the remand in this case, which was predicated on adjudicative error by the BVA, affords the appellant prevailing-party status. B. Substantial Justification This Court will award attorney fees to a prevailing party “unless the [C]ourt finds that the position of the United States was substantially justified”. 28 U.S.C. § 2412(d)(1)(A); Swiney v. Gober, 14 Vet.App. 65, 70 (2000); Stillwell v. Brown, 6 Vet.App. 291, 301 (1994). In order to avoid the payment of attorney fees and expenses, the Secretary bears the burden of demonstrating that his position was substantially justified at both the adjudicative (BVA) and litigation (Court) stages. See Locher v. Brown, 9 Vet.App. 535, 537 (1996). This Court applies the following standard for determining whether the Secretary’s position was substantially justified: VA must demonstrate the reasonableness, in law and fact, of the position of ... VA in a matter before the Court, and of the action or failure to act by ... VA in a matter before ... VA, based upon the totality of the circumstances," }, { "docid": "12692272", "title": "", "text": "256, 260-61 (2001) (en banc), aff'd sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed.Cir.2003); Cullens, supra. The appellant has the burden of demonstrating prevailing-party status under the EAJA. Ibid. Prevailing-party status arises in either of two ways. The first is through a direction of the Court, evident within the terms of the particular Court decision upon which the appellant is basing the EAJA application, for VA to award VA benefits to the appellant. Sumner, 15 Vet. App. at 264-65. The second is through the grant of a merits-stage Court remand that was predicated upon administrative error. Ibid. In order for a remand to have been predicated upon administrative error, the remand must either (1) have been directed in a Court opinion, decision, or order that contained a Court recognition of administrative error or (2) have been granted on the basis of a concession of error by the Secretary. McCormick v. Principi, 16 Vet.App. 407, 411 (2002); Briddell, 16 Vet.App. at 271-72. The Court will not “investigate at the EAJA prevailing-party stage the validity, type, or nature of the administrative error.” McCormick, supra. Accordingly, in the instant case, because the Court’s remand was expressly predicated, in part, on the Court’s finding that the Board erred under 38 U.S.C. § 7104(a) and (d)(1) in not discussing § 4.49, see Abbey I, 2001 WL 1181652, at *2, the appellant was a prevailing party for EAJA purposes. See 28 U.S.C. § 2412(d)(1)(A); Sumner and McCormick, both supra. The Secretary does not defend his position in response to the appellant’s allegation that the Secretary’s position was not substantially justified, and the Secretary does not assert the affirmative defense that special circumstances make an award unjust. See Cullens, supra (noting that “[o]nce an appellant has alleged a lack of substantial justification, the burden shifts to the Secretary to prove that VA was substantially justified in its administrative and litigation positions”); McCormick, 16 Vet.App. at 412 (determining that, “[u]n-der the EAJA, the Secretary has affirmative defenses to a fee award, one of which is to demonstrate that his position at both the administrative (BVA) and litigation" }, { "docid": "2676527", "title": "", "text": "of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. 28 U.S.C. § 2412(d)(1)(B) (emphasis added). Section 2412(d)(1)(B) clearly instructs that substantial justification shall be determined on the basis of “the record.” However, it is not immediately clear from the statute what constitutes “the record.” According to Bowey, the record, for purposes of determining EAJA fees, is the record that was in existence at the time the government adopted and maintained its legal position. Thus, Bowey argues that the Court of Appeals for Veterans Claims erred by not limiting its substantial justification analysis to the time period between the Board’s decision and the Court of Appeals for Veterans Claims’ remand. According to Bowey, it was during this period that the government adopted and maintained its legal position, i.e., that the Board need not address all the factors contained in 38 C.F.R. § 3.311(e). The government argues that the determination of whether the government’s position was substantially justified should be based on the “totality of the circumstances,” which includes the entire record of the case and the prevailing case law up until the decision concerning EAJA fees is made. Thus, the government argues that the Court of Appeals for Veterans Claims did not err in considering the en banc decision in Hilkert II because that decision was handed down prior to the Court of Appeals for Veterans Claims’ EAJA determination and was, therefore, part of “the record.” However, we disagree with the government’s interpretation of “the record,” as that term is used in 28 U.S.C. § 2412(d)(1)(B), because it conflicts with prior precedents of this court. In Owen v. United States, 861 F.2d 1273, 1274 (Fed.Cir.1988) (en banc) (order), we held that a decision of this court, handed down after the government adopted its litigation position, did not affect our assessment of whether the government’s position was substantially" }, { "docid": "15035323", "title": "", "text": "the administrative agency on the merits. Id. § 2412(d)(2)(D). To prove that its position was “substantially justified,” the government bears the burden of showing that its position had “a reasonable basis in both law and fact.” Federal Election Commission v. Political Contributions Data, Inc., 995 F.2d 383, 386 (2d Cir.1993) (citing Pierce v. Underwood, 487 U.S. 552, 556 & n. 2, 108 S.Ct. 2541, 2545 & n. 2, 101 L.Ed.2d 490 (1988)), cert. denied, — U.S. -, 114 S.Ct. 1064, 127 L.Ed.2d 384 (1994). “The test is essentially one of reasonableness.” Id. (internal quotation marks omitted). The district court’s determination as to whether the government’s position was substantially justified is “a multifarious ... question, little susceptible ... of useful generalization” as either a question of law or fact. Pierce, 487 U.S. at 562, 108 S.Ct. at 2548. In recognition of the complexity of the issue, this court will reverse the district court’s determination only for an abuse of discretion. Id.; see also Cassuto v. Commissioner of Internal Revenue, 936 F.2d 736, 740 (2d Cir.1991). 2. Substantial Evidence vs. Substantial Justification As an initial matter, we must reject Sotelo’s contention that, because the panel of this court that addressed the merits of his asylum claim held that the administrative record compelled the conclusion that he had a well-founded fear of persecution, it necessarily follows that the Board’s position was not substantially justified. In the merits portion of an appeal from a Board decision, this Court asks whether the Board’s determination is “supported by substantial evidence.” In contrast, the issue for EAJA purposes is whether the agency had a reasonable basis in fact or law to take the position that it did, at the time that it made its decision. See Pierce, 487 U.S. at 560-61, 108 S.Ct. at 2547-48 (the question is “not what the law now is, but what the Government was substantially justified in believing it to have been”). We therefore hold, as have other circuits that have considered this question, that there is no congruence between the “substantial evidence” standard and the “substantially justified” standard. See, e.g., United" }, { "docid": "15790065", "title": "", "text": "of the VCAA, and remand was necessitated by the Board’s failure to comply with 38 U.S.C. § 7104(a), (c), and (d)(1) and well-established Court precedent, see Herlehy, Sanden, Karnas, and Gilbert, all supra, by addressing the applicability of the new law enacted in the VCAA prior to the Board decision. The instant case is therefore indistinguishable from ZP and Elcyzyn. Furthermore, the Secretary’s argument based on Holliday ignores the Board’s failure to abide by section 7104(c) and G.C. Prec. 11-00. Finally, given the General Counsel’s BVA-binding precedential opinion about VCAA general applicability, the Board was obliged, at the time of its decision here, to address whether the VCAA’s change of the law regarding the Secretary’s duty to notify (in 38 U.S.C. § 5103) and duty to assist (in 38 U.S.C. § 5103A, superceding section 5107(a)) was more favorable to the appellant than the pre-VCAA law on those matters. See Karnas, supra. Therefore, we hold that the Secretary has failed to carry his burden of demonstrating that his position at the administrative stage was substantially justified when the Board failed to comply with the existing statutory requirements of sections 7104(a), (c), and (d)(1). See Swiney, Locker, Stillwell, and Karnas, all supra. The Court thus need not address the justification for the Secretary’s position at the litigation stage, and will grant the appellant’s EAJA application in the amount requested. See Elcyzyn, supra. III. Conclusion Upon consideration of the foregoing analysis and the pleadings of the parties, the Court grants the appellant’s EAJA application in the amount of $2,956.87. APPLICATION GRANTED. HOLDAWAY, Judge, concurring: I concur with both the principal opinion and also the views expressed by Judge Ivers. I, however, am not prepared to say that the “failure” of the Board to discuss the VCAA will, in all cases, automatically constitute a lack of substantial justification. When that law was passed, this Court struggled for a time with its full implications. We resolved this by remanding most cases even though we recognized there were cases where the applicability of the VCAA was problematic. We should not require the Board to be prescient" }, { "docid": "1110906", "title": "", "text": "United States Court of Federal Claims and the United States Court of Veterans Appeal; 28 U.S.C. § 2412(d)(1)(A), (B), (2)(A), (D), (F). III. QUALIFYING FOR EAJA FEES A. Predicate Issues There are three predicate findings to an award of EAJA fees and expenses: (1) the party opposing the United States must be a “prevailing party”; (2) the government’s position must not have been substantially justified; and (3) there must be no circumstances that make an award against the government unjust. In this case, the Secretary does not contest the appellant’s status as a “prevailing party,” and we find that the appellant in fact and in law is a “prevailing party” under 28 U.S.C. § 2412(d)(1)(A). See Stillwell v. Brown, 6 Vet.App. 291, 300-01 (1994). The Secretary also does not assert “special circumstances” as defined by 28 U.S.C. § 2412(d)(1)(A) which would make an attorney fees award unjust in this case. Response at 8. Thus, the only predicate issue in dispute is whether the Secretary’s position was substantially justified. B. Was the Position of the United States “Substantially Justified”? In Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988), the Supreme Court held that in order for the position of the United States to be “substantially justified” it must have a “reasonable basis both in law and fact.” Id. at 565, 108 S.Ct. at 2550 (citations omitted). “[A] position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Id. at 566 note 2, 108 S.Ct. at 2550 note 2. Subsequently, in Commissioner, INS v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), the Supreme Court concluded that “position” encompassed both the agency’s prelitigation conduct and subsequent litigation positions, but that only one determination of lack of substantial justification with respect to the entire matter need be made. Id. at 159, 110 S.Ct. at 2319. “The single finding that the Government’s position" }, { "docid": "2712389", "title": "", "text": "that under current caselaw the appellant is a prevailing party. Furthermore, as the Supreme Court has held: “Where [a material alteration of the legal relationship of the parties] has occurred, the degree of the plaintiffs overall success goes to the reasonableness of the award under [Eckerhart, supra], not to the availability of a fee award vel non.” Texas State Teachers Assoc., 489 U.S. at 792-93, 109 S.Ct. 1486. Hence, as the Secretary has also agreed, because the vacatur of the BVA decision has materially changed the legal relationship of the parties, it matters not as to the prevailing-party analysis that the appellant sought a reversal but gained only a vacatur; rather, that matter is to be considered as a part of the Court’s consideration of the reasonableness of the fee, if an award is made. C. Substantial Justification Because the appellant has alleged that the Secretary’s position was not substantially justified, Application at 3-5, the Secretary “has the burden of proving that [his] position was substantially justified in order to defeat the appellant’s EAJA application”. Stillwell, 6 Vet.App. at 301. He must carry this burden as to his actions both in the administrative stage (BVA adjudication) and in the litigation stage (before this Court). See Locher v. Brown, 9 Vet.App. 535, 537 (1996); ZP v. Brown, 8 Vet.App. 303, 304 (1995). Although the Secretary did not even address substantial justification in his original response, the Court ordered him to address that issue in supplemental briefing. The Secretary now argues that his positions at both the administrative and litigation stages were substantially justified, respectively, because on the question whether the Board had jurisdiction to consider the appellant’s fee-basis-eare claim the BVA decision “was not contrary to precedent then standing and it relied upon historical interpretations of VA regulations” and “the Secretary cooperated in speedily resolving the litigation phase of this case based upon recent changes and evolutions in the Court’s caselaw.” Feb. 4, 2000, Resp. at 3-4. In Stilhvell, the Court noted that “ ‘a position can be justified even though it is not correct, and [that] ... it can be" }, { "docid": "15790050", "title": "", "text": "STEINBERG, Judge, filed the opinion of the Court. HOLDAWAY, Judge, and IVERS, Judge, filed separate concurring opinions. STEINBERG, Judge: The appellant, veteran Charles F. Cyc-holl, previously appealed through counsel a November 29, 2000, decision of the Board of Veterans’ Appeals (Board or BVA) that had denied a Department of Veterans Affairs (VA) rating of total disability based on individual unemployability (TDIU). On March 21, 2001, the Court vacated that Board decision and remanded the matter for readjudication. Currently pending before the Court is the appellant’s application, timely filed through counsel, for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA). The Secretary has filed a response in opposition to the application. For the reasons that follow, the Court will grant the EAJA application. I. Relevant Background On November 29, 2000, the Board determined that the veteran was not entitled to a TDIU rating. On December 27, 2000, the appellant filed, through counsel, a Notice of Appeal. On March 5, 2001, the Secretary filed the Designation of the Record and, on March 8, 2001, the Secretary filed an unopposed motion for a remand. The basis for the Secretary’s motion was the need for the Board to address in its decision the potential applicability of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475,114 Stat. 2096 (Nov. 9, 2000) (VCAA), which had been enacted prior to the issuance of the BVA decision. On March 22, 2001, the Court, in an unpublished order issued by the Clerk of the Court, granted the Secretary’s motion. On April 16, 2001, the appellant filed through counsel the pending EAJA application seeking $2,956.87 in attorney fees. On June 21, 2001, the Secretary filed a response to the appellant’s application; the Secretary asserts, alternatively, that the appellant is not a prevailing party entitled to EAJA fees and that the position of the Secretary was substantially justified. II. Analysis “The Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F).” Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The appellant’s April 16, 2001, EAJA application" }, { "docid": "2676532", "title": "", "text": "determine how that rule operates. On appeal, Bowey argues that the proper time frame for evaluating the government’s position begins with the Board’s rejection of Bowey’s claim and continues through the Court of Appeals for Veterans Claims’ remand. In other words, according to Bowey, the Court of Appeals for Veterans Claims’ decision in Hilkert I should be considered part of “the record” for EAJA purposes. We disagree. The Board denied Bowey’s claim for service connection on November 12, 1996. Bowey filed a Notice of Appeal on February 20, 1997 and a brief on May 30, 1998. It was not until July 16, 1998 — ■ more than a year after the Board’s decision — that the Court of Appeals for Veterans Claims handed down its decision in Hilkert I. Thus, Hilkert I was not part of the prevailing case law at the time the Board denied Bowey’s claim for service connection, nor was it part of the case law when the government elected — albeit tacitly — to challenge Bowey’s appeal to the Court of Appeals for Veterans Claims by failing to immediately move for a joint remand. Indeed, after Hilkert I was decided, the government was very quick to agree to a joint remand, a position that can hardly be called unjustified. Accordingly, we reject Bowey’s argument that Hilkert I should be considered part of the record for EAJA purposes. On the other hand, we must also reject the government’s alternative argument that we may affirm the decision of the Court of Appeals for Veterans Claims on the ground that the government’s position was substantially justified under preHilkert I ease law. Although we have concluded that neither Hilkert I nor Hilkert II is relevant to the question of substantial justification in this case, we cannot simply affirm the Court of Appeals for Veterans Claims’ denial of EAJA fees on that ground. Whether the government’s position was substantially justified is a “quintessentially discretionary” inquiry, Chiu v. United States, 948 F.2d 711, 715 n. 4 (Fed.Cir.1991), that “necessarily involves the determination of facts and the application of the substantially justified standard" }, { "docid": "1148415", "title": "", "text": "STEINBERG, Judge: The appellant, Mary Golliday, is seeking an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), following a remand order by this Court (pursuant to a joint motion to remand) directing the Board of Veterans’ Appeals (BVA or Board) to apply the analysis in Dobson v. Brown, 4 Vet.App. 443 (1993), to the appellant’s claim, as custodian for her minor child, for dependency and indemnity compensation (DIC) under 38 U.S.C. §§ 101(4), 1313, and 1314 and 38 C.F.R. § 3.356 (1993). The only contested issue is whether the Secretary’s position was substantially justified. The appellant argues that the government’s position was not substantially justified because the BVA misapplied the statutes and regulation. The Secretary, citing Stillwell v. Brown, 6 Vet.App. 291 (1994), appeal docketed, No. 94-7090 (Fed.Cir. June 20, 1994), argues that his position was substantially justified because the BVA’s erroneous pre-Dobson interpretation of the law was reasonable, given the complexity of the statutes and regulation. The Court agrees with the Secretary and will deny the application. I. Background The appellant has applied for attorney fees and expenses under the EAJA in connection with her appearance before this Court in an appeal of a February 2, 1993, BVA decision. The claimant is the custodian and mother of Eric J. Golliday (Eric). Record (R.) at 19. Eric is the son of veteran James E. Mickens (R. at 21), who had active military service from February 1966 to September 1968 and died in September 1985. R. at 6,17,113. In September 1985, the claimant filed with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) an application for DIC as the custodian of Eric. R. at 115, 117. In October 1985, the VARO found that the cause of the veteran’s death was service connected and that Eric was eligible for DIC. R. at 115. In July 1988, the claimant applied for continued DIC for Eric as a helpless child under 38 U.S.C. § 101(4) and 38 C.F.R. § 3.356 (1993), asserting that Eric was disabled due to sickle-cell disease" } ]

[ { "docid": "20572721", "title": "", "text": "the Jones subclass on the ground that DCPS’s failure to convene an MDT/IEP meeting within 30 days of the HOD’s issuance did not violate D. S.’s statutory rights because it resulted from plaintiffs invocation of the IDEA’S “stay put” provision, which rendered D. S.’s parent “unavailable” and made the execution of the IEP impossible. See Report at 11. The Special Master also concluded that the Hearing Officer’s failure to act swiftly on plaintiffs’ motion for reconsideration of the HOD also does not give rise to membership in either the Blackman or the Jones subclass. See Report at 11-12. The Special Master did not discuss whether the Multi-Disciplinary Team’s refusal to devise a compensatory education plan when it prepared the October 19, 2005 IEP constituted a deprivation of plaintiffs rights sufficient to merit Jones class membership. , The defendants agree with the Special Master’s conclusions; the plaintiffs disagree. Upon consideration of the Special Master’s Report and Recommendation and the arguments of the parties, the Court rejects in part the conclusions of the Special Master. It concludes that D.S. is a member of the Jones subclass, because DCPS failed to devise a compensatory education plan at the MDT/IEP meeting despite the conclusion of the Hearing Officer that she was entitled to compensatory education. The Court also concludes that the plaintiffs’ claims are not moot. 1.Failure to convene MDT/IEP meeting within 30 days The Special Master found that the actions of the plaintiffs in this matter, including the invocation of the “stay-put” provision of the IDEA and the filing of a motion for reconsideration of the HOD, contributed to the delay in convening the MDT/ IEP. She therefore concluded that the plaintiffs’ statutory rights were not violated. . See Report at 11. The Special Master notes that “once the Hearing Officer responded to the request for reconsideration, the IEP team did convene^]” Id. In response to the Special Master’s Report and Recommendation, plaintiffs argue that the parent’s invocation of the “stay put” provision did not render the parent “unavailable” for purposes of the MDT/IEP meeting, even if the student was “unavailable.” See Pis’" } ]

[ { "docid": "20572724", "title": "", "text": "the motion for reconsideration does not fall within the plain language defining the subclass. The Court therefore agrees with the conclusion of the Special Master on this point. The Court also observes that (to the Court’s knowledge) no provision of the IDEA or of the District of Columbia Municipal Regulations authorizes the filing of a motion for reconsideration of an HOD. Such- a motion is not barred, of course—and plaintiffs’ counsel cannot be faulted for her creative lawyer-ing. But if a plaintiff has no absolute right to file a motion for reconsideration, she also has no right to have such a motion adjudicated immediately. 3.Failure to devise compensatory education plan in MDT/IEP meeting The September 2, 2005 HOD found that D.S. “is entitled to compensatory education for the period March 14, 2005 thru the end of the 2004-05 School Year.” Sept. 2, 2005 HOD at 6. No evidence of what specific compensatory education would be provided was presented at the meeting, however, so the Hearing Officer instructed the MDT/ IEP team as. follows: At the said MDT/IEP/Plaeement meeting [to be conducted within 30 days], the form, amount and delivery of compensatory education for the period March 14, 2005 thru the end of the 2004-05 School year, if any, will be discussed and determined. Id. at 7, Because plaintiffs filed a motion to reconsider, no MDT/IEP placement meeting took place within 30 days. After plaintiffs filed a motion for injunc-tive relief with this Court, a MDT/IEP meeting was convened on October 19, 2005. D.S.’s parent objected to DCPS’s proposed placement of D.S. at Sharpe Health and refused to sign the IEP. The meeting notes state that “Parent [and] advocate are aware that student will not receive services until IEP is signed and informed consent given.” See October 19, 2005 MDT/IEP Meeting Notes at 2. With regard to compensatory education, the meeting notes state that: DCPS determined the student is not warranted compensatory education services at this time. The parent has refused to sign IEP or give consent for implementation since IEP development. Thus, DCPS would not be able to service the" }, { "docid": "19330974", "title": "", "text": "under Section 615(f) of the IDEA and D.C.Mun.Regs. Tit. 5, § 3021.5 are overdue according to those provisions; and their next friends.” The second subclass, the Jones subclass, is defined as “[a]ll children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determination of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS has negotiated with the child’s parent or educational advocate.” See Order of May 14,1998. On June 3, 1998, the Court granted plaintiffs’ motion for summary judgment as to liability. In finding that defendants were liable to members of the Blackman subclass for violating the IDEA, the Court noted that the “Office of Special Education Programs [at the United States Department of Education] found that as of January 5, 1998, ‘of the 655 hearing requests that had been received, a final decision had not been issued within [the applicable 45-day deadline] in 482 cases.’ ” Opinion of June 3, 1998 at 13. The Court also cited specific instances in which children had been waiting over 100 days, in one case 177 days, to receive their due process hearings. With respect to defendants’ liability to members of the Jones subclass, the Court noted the finding of the Office of Special Education Programs that “as of January 5, 1998, DCPS was delinquent in implementing the determinations of hearing officers in 332 cases.” Id. at 14. The failure to timely implement the determinations of hearing officers and/or to timely implement agreements reached with parents is a violation- of federal law and has resulted, among other things, in significant delays both in the placement of children in appropriate educational settings and in the provision of crucial medical services, delays that have the potential to permanently harm the physical and emotional health of many young children. Trial on the issue of class-wide remedy has been scheduled for June 8," }, { "docid": "20572723", "title": "", "text": "Obj. at 6-14. Because the Court concludes that the failure to devise a compensatory education plan at the October MDT/IEP meeting in response to the decision of the Hearing Officer qualifies D.S. for membership in the Jones subclass, the Court need not reach this point. 2.Plaintiffs’ motion for reconsideration The Special Master concluded that the Hearing Officer’s failure to give timely consideration to plaintiffs motion for reconsideration does not warrant Jones subclass membership. See Report at' 11-12. The Jones subclass is defined as: All children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determinations of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS had negotiated with the child’s parent or educational advocate[.] Order of May ’ 14, 1998[70] at 2-3. The failure of the Hearing Officer to promptly consider the motion for reconsideration does not fall within the plain language defining the subclass. The Court therefore agrees with the conclusion of the Special Master on this point. The Court also observes that (to the Court’s knowledge) no provision of the IDEA or of the District of Columbia Municipal Regulations authorizes the filing of a motion for reconsideration of an HOD. Such- a motion is not barred, of course—and plaintiffs’ counsel cannot be faulted for her creative lawyer-ing. But if a plaintiff has no absolute right to file a motion for reconsideration, she also has no right to have such a motion adjudicated immediately. 3.Failure to devise compensatory education plan in MDT/IEP meeting The September 2, 2005 HOD found that D.S. “is entitled to compensatory education for the period March 14, 2005 thru the end of the 2004-05 School Year.” Sept. 2, 2005 HOD at 6. No evidence of what specific compensatory education would be provided was presented at the meeting, however, so the Hearing Officer instructed the MDT/ IEP team as. follows: At the" }, { "docid": "20572727", "title": "", "text": "Meeting Notes at 5. This statement makes no sense. Just because the parent refused to sign the IEP because she objected to the placement now proposed has nothing to do with whether the failings of DCPS in the past must be rectified by providing compensatory education for those past failures. The Hearing Officer made an explicit finding in September that DCPS had denied D.S. the free, appropriate public education she was guaranteed under the IDEA— specifically, during the period between March 14, 2005 and the end of the 2004-2005 school year—and that D.S. therefore was entitled to compensatory education. See Report at 6. The Hearing Officer directed the MDT/IEP team to “discuss and determine” what compensatory education D.S. should receive. Id. The team failed to do so, based only on the (unrelated) contemporaneous refusal of the parent to sign the IEP. Because DCPS “failed to fully and timely implement” this aspect of the Hearing Officer’s determination, the Court concludes that D.S. is a member of the Jones subclass. See Order of May 14, 1998[70] at 2-3. 4. Mootness Despite the fact that D.S. now has a permanent placement at Prospect and DCPS now has begun the delivery of compensatory education, plaintiffs argue that their claim is not moot. They assert that while DCPS agreed to provide compensatory education, in fact only two hours of counseling services and one hour of tutoring actually have been delivered to D.S. They also relate numerous delays and other difficulties they have had in obtaining the compensatory education DCPS has committed to providing. Based on this experience, plaintiffs argue that there is a strong likelihood that these difficulties will continue; and that unless the Court orders injunctive relief, DCPS’s past failure to provide D.S. with compensatory education is a wrong “ ‘capable of repetition, yet evading review.’” Reply at 7 (quoting Zearley v. Ackerman, 116 F.Supp.2d 109, 112 (D.D.C.2000)). Accordingly, plaintiffs argue, “court intervention and an enforceable judgment is required to ensure delivery of all appropriate compensatory services.” Reply at 6. The Court agrees. Once it is determined that D.S. is a member of the" }, { "docid": "4824124", "title": "", "text": "twenty-two African American children citywide is in foster care, compared with one of every fifty-nine Latino children and one of every 385 white children. . The order did not mention the District Court’s earlier finding that Jones’ claims were moot. . The docket sheet suggests that three sets of written objections were made by Jones. However, no “second\" set was ever recorded, and therefore there are only two written sets of objections considered in the record before us — the first and the “third.” The third set contains a wide range of objections to the settlement. The written set of objections filed by McReynolds are nearly identical to those made by Jones. . The appellees also contend that Jones’ claims are moot. Because Jones had lost parental rights over her children during the pendency of the class action, appellees reason, Jones' claims for relief were moot and she therefore lacked standing to object: “Ms. Jones no longer has any children subject to ACS’ jurisdiction, there is no possibility that ACS’ policies will ever infringe on Ms. Jones’ now non-existent parental rights, and the newly implemented procedures in the settlement will not affect Ms. Jones.” This argument, however, fails to recognize that Jones has also maintained a claim for damages arising from past violations. See, e.g., Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir.1986). Because Jones also sought compensatory damages, the termination of parental rights, by itself, did not render Jones’ interest in the class action lawsuit moot. Cf. Martens v. Thomann, 273 F.3d 159, 173 n. 10 (2d Cir.2001) (\"Although, upon certification of a class, the class representative must have individual standing, class representatives may continue to represent a class even if their individual claims become moot.” (citation omitted)). Jones, as a class member and representative, was entitled to continued standing as a member of the class. . Moreover, Jones forfeited her claim to such an incentive award by not specifically raising it in her objections to the settlement. . Jones' challenge to the Notice, as explained above, involves the lack of notice to Spanish-speaking class members. However, there" }, { "docid": "20572729", "title": "", "text": "Jones subclass, it follows that plaintiffs’ pending demand for compensatory education—if it has not been adequately met—presents this Court with a live controversy. See Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 833 (D.C.Cir.2006) (holding that existence of an unaddressed claim for compensatory education presents the district court with a live controversy). As Judge Walton noted in another, similar case: The Court’s power to grant compensatory education for IDEA violations is undisputed. Where a person brings an action alleging a violation of the IDEA, the Court is empowered to “grant such relief as [it] determines is appropriate.” 20 U.S.C. 1415(i)(2)(C)(iii). “Federal courts have interpreted ‘appropriate relief to include compensatory education as an equitable remedy to be granted upon finding that a' child has been denied FAPE under the Act.” Diatta v. Dist. of Columbia, 319 F.Supp.2d 57, 64 (D.D.C.2004). “Under the theory of ‘compensatory education,’ courts and hearing officers may award educational services ... to be provided prospectively to compensate for a past deficient program.” Flores v. District of Columbia, 437 F.Supp.2d 22, 30 (D.D.C.2006) (denying DCPS’ motion to dismiss as moot when plaintiff asserts that DCPS has not completely satisfied request for compensatory education) (citing Reid v. Dist. of Columbia, 401 F.3d 516, 522 (D.C.Cir.2005)) (internal quotation marks and citations omitted). For the foregoing reasons, it is hereby ORDERED that [1728] the Motion for Preliminary Injunction filed by Paula Simmons, Parent and Next Friend of D.S. is GRANTED in part and DENIED in part; specifically, it is FURTHER ORDERED that defendants shall continue D. S.’s placement at the Prospect Learning Center on a permanent basis though the 2006-2007 school year; it is FURTHER ORDERED that the defendants shall implement the compensatory education plan referenced by defendants in their Response to Plaintiffs Objections to the Special Master’s Report and Recommendation [Docket No. 1834] at page 3, note 4; and it is FURTHER ORDERED that as the prevailing party plaintiffs are entitled to reasonable attorneys fees. SO ORDERED. . MDT is an abbreviation of Multi-Disciplinary Team. . The parties’ responses to the Special Master’s Report and Recommendation also" }, { "docid": "21819181", "title": "", "text": "by the undersigned on grounds that while Edison focuses on the convening of an MDT meeting, the real issue is Edison’s failure to develop a compensatory education plan and that issue was not addressed in the subsequent HODs involving claims against DCPS. Furthermore, Edison has not established why the determination of any fact in the prior hearings against DCPS would invalidate Mr. Suggs’ claim against Edison since there are separate claims against Edison and DCPS. Suggs additionally argues that “the 2005 HODs against DCPS were consent orders, or ‘settlements on the record.’ ” (Suggs Opposition at 5, citing A.R. at 137.) According to Suggs, “[n]o issue was fully litigated at either hearing, and no finding was necessary to either decision.” (Suggs Opposition at 5.) The undersigned notes that Edison’s collateral estoppel claim fails on grounds that there is no identity of issues with a prior case nor were the issues fully litigated in a prior case. C. DCPS Responsibility for any Harm Count III of Edison’s Complaint is vague insofar as it asserts that “[a]ny consequences suffered by the parent in the failure to implement the three previous hearing officer’s determination[s] is a direct result of DCPS’s complacency in enforcing the HODs.” (Complaint at ¶ 25.) While the Hearing Officer had already acknowledged that DCPS was at fault for not providing notice of any impending MDT meeting, there is no support in the record that DCPS should assume liability for Edison’s failure to provide compensatory education, which is a responsibility that falls on Edison alone. DCPS asserts that “the issue before the court is not the allocation of any ‘harm’ that befell the student, but whether Edison will be required to meet its responsibilities under the HOD provisions at issue.” (DCPS Motion at 8.) Edison fails to allege any enforceable claim for relief against DCPS and the undersigned accordingly recommends that judgment on the pleadings be entered in DCPS’s favor on Count III, the only Count addressing DCPS. D. Showing of Educational Detriment Count IV alleges that “the Hearing Officer erred in ordering a meeting to discuss compensatory education without" }, { "docid": "20572726", "title": "", "text": "student without parental consent. Therefore, DCPS has not failed to provide services to this student. Compensatory education is to provide compensation for lost services and the student’s educational progress has been harmed. Under this definition the student is not warranted services. October 19, 2005 MDT/IEP Meeting Notes at 5 (emphasis added). There is no further discussion of compensatory education in the Meeting Notes. Defendants argue on the basis of this statement that the MDT/IEP team fully implemented the Hearing Officer’s Order that it “discuss and determine” compensatory education, because under the HOD it was “permissible to determine that no services were warranted at that time.” Defs’ Resp. at 7. Assuming for the sake of argument that such a decision might have been within the scope of the Hearing Officer’s Order, this clearly is not what the MDT/IEP team actually determined. Rather, the team determined, on the basis of the parent’s contemporaneous refusal to sign the IEP, that DCPS “ha[d] not failed to provide services to this student” in the past. See October 19, 2005 MDT/IEP Meeting Notes at 5. This statement makes no sense. Just because the parent refused to sign the IEP because she objected to the placement now proposed has nothing to do with whether the failings of DCPS in the past must be rectified by providing compensatory education for those past failures. The Hearing Officer made an explicit finding in September that DCPS had denied D.S. the free, appropriate public education she was guaranteed under the IDEA— specifically, during the period between March 14, 2005 and the end of the 2004-2005 school year—and that D.S. therefore was entitled to compensatory education. See Report at 6. The Hearing Officer directed the MDT/IEP team to “discuss and determine” what compensatory education D.S. should receive. Id. The team failed to do so, based only on the (unrelated) contemporaneous refusal of the parent to sign the IEP. Because DCPS “failed to fully and timely implement” this aspect of the Hearing Officer’s determination, the Court concludes that D.S. is a member of the Jones subclass. See Order of May 14, 1998[70] at" }, { "docid": "17984497", "title": "", "text": "the Court’s analysis of plaintiffs’ motions. Upon consideration of the arguments of the parties, the Court concludes that plaintiffs are entitled to attorneys’ fees, and their motions therefore are granted. I. BACKGROUND A. Procedural History of this Action On May 14, 1998, the Court certified a class with two subclasses in the consolidated cases of Blackman v. District of Columbia, Civil Action No. 97-1629(PLF), and Curtis v. District of Columbia, Civil Action No. 97-2402(PLF). The first sub class, the Blackman subclass, is defined as “all persons now, and in the future, who present complaints to DCPS pursuant to Section 615(b)(6) of the IDEA and whose requests for impartial due process hearings under Section 615(f) of the IDEA and D.C. Mun. Regs. Tit. 5, § 3021.5 are overdue according to those provisions; and their next friends.” Blackman v. District of Columbia, Civil Action No. 97-1629, Order (D.D.C. May 14, 1998). The second subclass, the Jones subclass, is defined as “all children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determination of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS has negotiated with the child’s parent or educational advocate.” Id. On June 3, 1998, the Court granted plaintiffs’ motion for summary judgment as to liability. See Order and Opinion of June 3, 1998. The Court declined to issue a class-wide preliminary injunction at that time, concluding that such a broad injunction “would be ineffective and impractical.” Blackman v. District of Columbia, 185 F.R.D. 4, 5 (D.D.C.1999). Instead, the Court assumed that in the most severe cases, in which irreparable injury was threatened absent some action by the District, “the District would not ignore its obligation to take such action even absent resolution of the claims of the class as a whole.” Id. By 1999, however, the Court concluded that the District had ignored its obligations, even" }, { "docid": "19330975", "title": "", "text": "a final decision had not been issued within [the applicable 45-day deadline] in 482 cases.’ ” Opinion of June 3, 1998 at 13. The Court also cited specific instances in which children had been waiting over 100 days, in one case 177 days, to receive their due process hearings. With respect to defendants’ liability to members of the Jones subclass, the Court noted the finding of the Office of Special Education Programs that “as of January 5, 1998, DCPS was delinquent in implementing the determinations of hearing officers in 332 cases.” Id. at 14. The failure to timely implement the determinations of hearing officers and/or to timely implement agreements reached with parents is a violation- of federal law and has resulted, among other things, in significant delays both in the placement of children in appropriate educational settings and in the provision of crucial medical services, delays that have the potential to permanently harm the physical and emotional health of many young children. Trial on the issue of class-wide remedy has been scheduled for June 8, 1999, and the parties also are engaged in mediation in a good faith effort to agree upon a mutually acceptable remedial plan. Pending resolution of the issue of remedy, however, there are children whose health, safety and well-being are threatened by the failure of DCPS to comply with its obligations under the IDEA. In some cases, plaintiffs maintain that the injury is irreparable and that immediate relief is required. The Court has not issued a broad, class-wide preliminary injunction requiring the District to immediately comply with its statutory and regulatory obligations to all members of the class, in part because such a broad injunction would be ineffective and impractical: the District simply does not have the resources to come into immediate compliance. Instead the Court has operated on the assumption that in the most severe cases, where irreparable injury is threatened absent some action by the District, the District would not ignore its obligation to take such action even absent resolution of the claims of the class as a whole. Unfortunately, the Court’s confidence appears" }, { "docid": "21819182", "title": "", "text": "consequences suffered by the parent in the failure to implement the three previous hearing officer’s determination[s] is a direct result of DCPS’s complacency in enforcing the HODs.” (Complaint at ¶ 25.) While the Hearing Officer had already acknowledged that DCPS was at fault for not providing notice of any impending MDT meeting, there is no support in the record that DCPS should assume liability for Edison’s failure to provide compensatory education, which is a responsibility that falls on Edison alone. DCPS asserts that “the issue before the court is not the allocation of any ‘harm’ that befell the student, but whether Edison will be required to meet its responsibilities under the HOD provisions at issue.” (DCPS Motion at 8.) Edison fails to allege any enforceable claim for relief against DCPS and the undersigned accordingly recommends that judgment on the pleadings be entered in DCPS’s favor on Count III, the only Count addressing DCPS. D. Showing of Educational Detriment Count IV alleges that “the Hearing Officer erred in ordering a meeting to discuss compensatory education without any showing as to educational detriment as required by Reid v. District of Columbia, 401 F.3d 516 (D.C.Cir.2005).” (Complaint at ¶ 27.) Suggs argues that “Edison had already waived any objection to an order requiring a meeting to determine compensatory education by failing to serve a response to the due process complaint, failing to file a notice of insufficiency regarding the due process complaint, and failing to convene a resolution session regarding the due process complaint.” (Suggs Opposition at 9, string citing provisions from 20 U.S.C. § 1415.) Edison does not dispute that it did not serve a response to the due process complaint, or file a notice of insufficiency regarding the due process complaint, or convene a resolution session. Suggs further argues that “Edison’s criticism of the HOD clause ordering Edison to convene a meeting to determine compensatory education has become moot” in light of the two superseding HODs issued since HOD 4, and the Court cannot provide Edison with relief because “there is no more call for a compensatory education meeting.” (Suggs’ Opposition" }, { "docid": "17984496", "title": "", "text": "OPINION AND ORDER PAUL L. FRIEDMAN, District Judge. This action was filed under 42 U.S.C. § 1983 to enforce the rights of the plaintiff class members under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. Before the Court are three motions for attorneys’ fees and costs: (1) the motion of Diana Blackwell, filed on behalf of herself and her daughter Equilla Blackwell; (2) the motion of Victoria Harris, filed on behalf of herself and her daughter Chandra Harris; and (3) the motion of Dionne Timmons, on behalf of herself and her son Donnell Timmons. Defendants filed an opposition to each motion, plaintiffs filed reply briefs and supplemental requests for attorneys’ fees and costs. In the interim, the parties also briefed the issue of whether the Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), affects the Court’s analysis of plaintiffs’ motions. Upon consideration of the arguments of the parties, the Court concludes that plaintiffs are entitled to attorneys’ fees, and their motions therefore are granted. I. BACKGROUND A. Procedural History of this Action On May 14, 1998, the Court certified a class with two subclasses in the consolidated cases of Blackman v. District of Columbia, Civil Action No. 97-1629(PLF), and Curtis v. District of Columbia, Civil Action No. 97-2402(PLF). The first sub class, the Blackman subclass, is defined as “all persons now, and in the future, who present complaints to DCPS pursuant to Section 615(b)(6) of the IDEA and whose requests for impartial due process hearings under Section 615(f) of the IDEA and D.C. Mun. Regs. Tit. 5, § 3021.5 are overdue according to those provisions; and their next friends.” Blackman v. District of Columbia, Civil Action No. 97-1629, Order (D.D.C. May 14, 1998). The second subclass, the Jones subclass, is defined as “all children, now and in the future, who are entitled to have DCPS provide them with a" }, { "docid": "20572715", "title": "", "text": "Special Master’s findings of fact and conclusions of law, and arguing specifically that D.S. was indeed a member of the Jones class, and that in-junctive relief was warranted. Defendants filed a subsequent response to the Special Master’s Report and Recommendation on May 25, 2006. On June 6, plaintiffs filed a motion to strike defendants’ response on the ground that it was not authorized by Rule 53(g) of the Federal Rules of Civil Procedure; they also filed a substantive reply to defendants’ filing. The motion to strike was denied on June 30, 2006. I. BACKGROUND The Special Master’s Report and Recommendation sets forth a more complete account of the circumstances of this case, but the relevant facts are as follows. Plaintiffs here are D. S., a 12-year-old student enrolled in the District of Colum bia Public Schools, and her mother, Paula Simmons. D.S. has a severe and permanent medical condition that has a significant impact on her physical and emotional state, and thus on her academic performance. See Report at 1-2. From the age of four, D.S. attended Stanton Elementary School, a public school in the District of Columbia. Id. at 2. She was first found eligible for special education services on January 27, 2005. Id. An initial Individualized Education Program (“IEP”) for D.S. was prepared in March 2005. This IEP identified Sharpe Health School as the appropriate placement for D.S. Id. On June 23, 2005, D.S.’s parent sought an administrative due process hearing to challenge the IEP on the ground that it was prepared without her presence or knowledge, and was never delivered to either her or her advocate. In their request for a hearing, plaintiffs sought an order directing DCPS to: (1) immediately place and fund D.S. at Phillips School, a private institution in Annandale, Virginia; (2) prepare an appropriate IEP; and (3) provide D.S. with compensatory education. Id. at 2-3. In a Hearing Officer Determination (“HOD”) issued on September 2, 2005, the Hearing Officer found that D.S. had been denied a free appropriate public education because “DCPS did not establish that the Parent was ever made aware of" }, { "docid": "252025", "title": "", "text": "erred in denying Phillip’s claims for compensatory and punitive damages (Count VIII) also was resolved prior to trial. The Court ruled that the hearing officer did not err in failing to award compensatory or punitive damages to plaintiffs, as neither is contemplated under the terms of the IDEA and thus may not be granted by a hearing officer. See Walker v. District of Columbia, 969 F.Supp. at 797-98. . As the Court said in Blackman: “Any agency whose appointed mission is to provide for the education and welfare of children fails that mission when it loses sight of the fact that, to a young, growing person, time is critical. While a few months in the life of an adult may be insignificant, at the rate at which a child, develops and changes, especially one at the onset of biological adolescence with or without special needs like those of our plaintiff, a few months can make a world of difference in the life of that child.” Blackman v. District of Columbia, 185 F.R.D. at 7 (quoting Foster v. District of Columbia, Civil Action No. 82-0095, Memorandum Opinion and Order of February 22, 1982, at 4 (D.D.C.) (J.H. Green, J.)). . Because plaintiffs failed to meet the second prong of the test for compensatory damages with respect to any of its allegations against DCPS, the Court need not address the third and fourth prongs. The Court nevertheless notes that plaintiffs’ attempt to rely on the Court's finding of a custom and practice in Blackman v. District of Columbia, Civil Action No. 97-1629, is unavailing. The Court in Blackman found only that the two classes of plaintiffs in that case had submitted evidence \"sufficient to establish that the District of Columbia, faced with clear violations of the IDEA over a number of years, has displayed deliberate indifference to plaintiffs’ rights” to timely due process hearings, timely implementation of determinations of hearing officers and implementation of settlement agreements. See Opinion of June 3, 1998, at 15-17. The customs and practices alleged in this case involve mostly different violations of the IDEA occurring over a" }, { "docid": "20572714", "title": "", "text": "OPINION AND ORDER PAUL L. FRIEDMAN, District Judge. This matter is before the Court on a motion for preliminary injunction [1728] filed by Paula Simmons, parent and next friend of the minor child D.S., on October 6, 2005. Arguing that D.S. is a member of both the Blackman and Jones subclasses, plaintiffs sought an Order directing the District of Columbia Public Schools (“DCPS”) immediately to place and fund D.S. at the Phillips School, a private institution in Annandale, Virginia, and to provide D.S. with compensatory education. Plaintiffs’ motion also sought reasonable attorneys’ fees and costs. Pursuant to the Order of Reference issued on February 12, 1999, the Court on October 7, 2006, referred plaintiffs’ motion to Special Master Elise Baach for a Report and Recommendation. On April 19, 2006, the Special Master issued her Report and Recommendation [1829]. The Report concluded that D.S. was neither a Blackman nor, a Jones class member and recommended that plaintiffs’ motion be denied. Plaintiffs filed objections to the Report and Recommendation on May 8, 2006, challenging some of the Special Master’s findings of fact and conclusions of law, and arguing specifically that D.S. was indeed a member of the Jones class, and that in-junctive relief was warranted. Defendants filed a subsequent response to the Special Master’s Report and Recommendation on May 25, 2006. On June 6, plaintiffs filed a motion to strike defendants’ response on the ground that it was not authorized by Rule 53(g) of the Federal Rules of Civil Procedure; they also filed a substantive reply to defendants’ filing. The motion to strike was denied on June 30, 2006. I. BACKGROUND The Special Master’s Report and Recommendation sets forth a more complete account of the circumstances of this case, but the relevant facts are as follows. Plaintiffs here are D. S., a 12-year-old student enrolled in the District of Colum bia Public Schools, and her mother, Paula Simmons. D.S. has a severe and permanent medical condition that has a significant impact on her physical and emotional state, and thus on her academic performance. See Report at 1-2. From the age of four," }, { "docid": "21819186", "title": "", "text": "Blackman v. District of Columbia, 374 F.Supp.2d 168, 172 (D.D.C.2005) (ordering DCPS to convene “an MDT/IEP meeting to determine the appropriate scope and amount of compensatory education to which [the plaintiffs child] is entitled”); Flores v. District of Columbia, 05-CV-653 (RBW), June 30, 2006 Order (ordering meeting “to assess whether and to what degree the child is in need of compensatory education.”) (Suggs’ Opposition at 13.) Edison asserts that there is no evidence in this case that linked A. S’s level of academic functioning to any denial of FAPE by Edison. According to Edison, there is nothing in the record to suggest that the student is in need of additional services or that additional services are warranted for any previous denial of FAPE. (Edison’s Opposition at 6, citing A.R. at 38.) Edison’s statement is contradicted by the Hearing Officer’s April 12, 2007 HOD. The Hearing Officer considered student’s evaluations from 2003-2006, the student’s circumstances, and witness testimony and recommendations before determining how much compensatory education was owed by Edison. The Hearing Officer found that it was in the best interest of the student not to further delay provision of compensatory education services. Edison had an opportunity to participate in the hearing resulting in the April 12, 2007 HOD, but the Hearing Officer noted that Edison came to the hearing with no evaluations, no witnesses and no documents. Accordingly, the undersigned recommends that Edison’s claim that there has been no showing of educational detriment be denied based on the record before the trial court, which shows that the Hearing Officer considered the educational detriment of the student. IV. RECOMMENDATION The undersigned recommends that the trial court deny summary judgment in favor of Plaintiff on grounds that the Hearing Officer’s denial of application of res judicata and collateral estoppel fail is appropriate because neither standard has been met; Edison’s claims against DCPS in Count III of the Complaint are vague and lack merit, and its claim that the Hearing Officer acted contrary to the standard in Reid is unsupported by the record in this case. The undersigned also recommends that DCPS’s motion" }, { "docid": "17984498", "title": "", "text": "free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determination of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS has negotiated with the child’s parent or educational advocate.” Id. On June 3, 1998, the Court granted plaintiffs’ motion for summary judgment as to liability. See Order and Opinion of June 3, 1998. The Court declined to issue a class-wide preliminary injunction at that time, concluding that such a broad injunction “would be ineffective and impractical.” Blackman v. District of Columbia, 185 F.R.D. 4, 5 (D.D.C.1999). Instead, the Court assumed that in the most severe cases, in which irreparable injury was threatened absent some action by the District, “the District would not ignore its obligation to take such action even absent resolution of the claims of the class as a whole.” Id. By 1999, however, the Court concluded that the District had ignored its obligations, even in severe cases, and appointed Elise Baach, Esq., as a Special Master “for the limited purposes of assisting the Court in resolving the requests for immediate injunctive relief,” which was “the least intrusive and most effective way to ensure that the noncompliance with the IDEA which gave rise to liability does not cause irreparable injury to any individual class member pending the determination of class-wide relief.” Id. at 7, 8. The Order of Reference entrusted the Special Master “with the dual function of facilitating a mutually satisfactory resolution of each such individual claim, and, in the absence of a mutually acceptable resolution, providing the Court with a report and recommendation with respect to whether any particular plaintiff is entitled to preliminary injunctive relief.” Blackman v. District of Columbia, 185 F.R.D. at 9. The Order broadly applied to “any motion filed in this Court by a member or members of the class certified in this case which seeks a temporary restraining order, a preliminary injunction or other emergency injunctive relief in addition to or more quickly" }, { "docid": "20572722", "title": "", "text": "that D.S. is a member of the Jones subclass, because DCPS failed to devise a compensatory education plan at the MDT/IEP meeting despite the conclusion of the Hearing Officer that she was entitled to compensatory education. The Court also concludes that the plaintiffs’ claims are not moot. 1.Failure to convene MDT/IEP meeting within 30 days The Special Master found that the actions of the plaintiffs in this matter, including the invocation of the “stay-put” provision of the IDEA and the filing of a motion for reconsideration of the HOD, contributed to the delay in convening the MDT/ IEP. She therefore concluded that the plaintiffs’ statutory rights were not violated. . See Report at 11. The Special Master notes that “once the Hearing Officer responded to the request for reconsideration, the IEP team did convene^]” Id. In response to the Special Master’s Report and Recommendation, plaintiffs argue that the parent’s invocation of the “stay put” provision did not render the parent “unavailable” for purposes of the MDT/IEP meeting, even if the student was “unavailable.” See Pis’ Obj. at 6-14. Because the Court concludes that the failure to devise a compensatory education plan at the October MDT/IEP meeting in response to the decision of the Hearing Officer qualifies D.S. for membership in the Jones subclass, the Court need not reach this point. 2.Plaintiffs’ motion for reconsideration The Special Master concluded that the Hearing Officer’s failure to give timely consideration to plaintiffs motion for reconsideration does not warrant Jones subclass membership. See Report at' 11-12. The Jones subclass is defined as: All children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determinations of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS had negotiated with the child’s parent or educational advocate[.] Order of May ’ 14, 1998[70] at 2-3. The failure of the Hearing Officer to promptly consider" }, { "docid": "19330973", "title": "", "text": "OPINION FRIEDMAN, District Judge. These consolidated cases have been before the Court multiple times in recent months on motions for preliminary injunctions. After considering the circumstances that led plaintiffs to file the original Blackman and Curtis class action lawsuits and, of late, to file numerous individual motions for preliminary injunctions, the Court concludes that extraordinary circumstances exist to warrant appointment of Elise Baach as Special Master to facilitate resolution of each motion for preliminary injunction filed in these or related cases and, in the absence of a negotiated resolution, to provide the Court with a report and recommendation. On May 14, 1998, the Court certified a class with two subclasses in the consolidated cases of Blackman v. District of Columbia, Civil Action No. 97-1629, and Curtis v. District of Columbia, Civil Action No. 97-2402. The first subclass, the Blackman subclass, is defined as “[a]ll persons now, and in the future, who present complaints to DCPS pursuant to Section 615(b)(6) of the [Individuals with Disabilities Education Act (‘IDEA’)] and whose requests for impartial due process hearings under Section 615(f) of the IDEA and D.C.Mun.Regs. Tit. 5, § 3021.5 are overdue according to those provisions; and their next friends.” The second subclass, the Jones subclass, is defined as “[a]ll children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determination of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS has negotiated with the child’s parent or educational advocate.” See Order of May 14,1998. On June 3, 1998, the Court granted plaintiffs’ motion for summary judgment as to liability. In finding that defendants were liable to members of the Blackman subclass for violating the IDEA, the Court noted that the “Office of Special Education Programs [at the United States Department of Education] found that as of January 5, 1998, ‘of the 655 hearing requests that had been received," }, { "docid": "20572719", "title": "", "text": "19, 47 days after the HOD had been issued. Id. at 8. The MDT/IEP meeting notes reflect some controversy over the appropriate place ment for D.S. The DCPS placement specialist maintained that Sharpe was an appropriate placement, and a representative from Stanton, where D.S. was enrolled, stated that Stanton could not implement D.S.’s existing IEP. See Report at 8; MDT/IEP Meeting Notes at 2. D.S.’s parent and advocate disagreed with a placement at Sharpe and refused to sign the IEP, while acknowledging that D.S. could not receive services until the parent signed the IEP and gave “informed consent.” See MDT/IEP Meeting Notes at 2. Based on the parent’s and advocate’s refusal to sign the IEP, the multidisciplinary team determined that compensatory education for D.S. was not warranted. See id. at 5. On October 25, 2005, the Special Master convened a meeting at which the parties agreed to place D.S. at Prospect Learning Center on an interim basis. On March 26, 2006, the MDT met and changed D.S.’s interim placement at Prospect to a permanent one. See Defs’ Resp. to Pis’ Obj. at 3 note 4.- At the same meeting, the MDT proposed and adopted a plan to provide D.S. with compensatory education for the period called for in the September 2, 2005 HOD (from March 14, 2005, through the end of the 2004-05 school year), as well as for the period from September 2005 to November 2005. Id. II. DISCUSSION A. Blackman claim The Special Master concluded that D.S. is not a member of the Blackman subclass. Plaintiffs did not object to this conclusion. The Court has considered carefully the Special Master’s conclusions on this issue, finds them to be sound and well-reasoned, and adopts fully the decision and reasoning set forth in the Report and Recommendation on this issue. Plaintiffs motion for a preliminary injunction therefore will be denied insofar as it relies on D.S.’s alleged Blackman class membership. See Report at 9-10; see also Blackman v. District of Columbia, 277 F.Supp.2d 71, 79-80 (D.D.C.2003). B. Jones claim The Special Master concluded that D.S. is not a member of" } ]

[ { "docid": "23632803", "title": "", "text": "cause have been abrogated by the amendment to the rule”); Ritts v. Dealers Alliance Credit Corp., 989 F.Supp. 1475, 1479 (N.D.Ga.1997) (granting extension in absence of good cause, relying upon Seventh Circuit’s decision in Panaras v. Liquid Carbonic Industries Corp., 94 F.3d 338, 340 (7th Cir.1996), holding that the 1993 amendment grants discretion to extend the time for service of process). Furthermore, a majority of the other circuits that have considered the effect of the 1993 amendment to Rule 4 have held that the 1993 amendment permits a district court to exercise discretion under Rule 4 to extend the time for service of process, even where the plaintiff has not shown good cause for his failure. See Mann v. American Airlines, 324 F.3d 1088 (9th Cir.2003); Panaras, 94 F.3d at 340 (Seventh Circuit); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298 (3d Cir.1995); Thompson v. Brown, 91 F.3d 20 (5th Cir.1996); Espinoza v. United States, 52 F.3d 838 (10th Cir.1995). Even the Supreme Court, in dicta, concluded that the 1993 amendment to Rule 4 affords discretion to the district court to extend the time for service even in the absence of good cause. Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). In Henderson, the Court said that under the “... 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period ‘even if there is not good cause shown’.... The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow.” Id. at 663-63, 116 S.Ct. 1638. (internal citations omitted). In reaching this conclusion the Supreme Court and our sister circuits have relied upon the Advisory Committee’s Notes on Rule 4, in which the Committee noted that the 1993 amendment “authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.” Although not binding, the interpretations in the Advisory Committee Notes “are nearly universally accorded great weight in interpreting federal" } ]

[ { "docid": "10080193", "title": "", "text": "elements of Rule 15(c), I must address the important threshold question of whether Rule 15(c) is even available as a vehicle to the plaintiff in this instance. A. Addition of New Parties under Rule 15(c) Young and Piedmont argue that Rule 15(c) only permits amendments that correct mistakes as to existing parties, not amendments that name additional parties. I have found very little relevant case law on this issue within the Fourth Circuit. The only appellate decision directly on point is Onan v. County of Roanoke, 52 F.3d 321, 1995 WL 234290 (Apr. 21, 1995) (unpublished). In Onan, the plaintiff, a county employee, sued several local officials under Title VII and other statutes. Id. at *1. After the expiration of the 90-day statute of limitations under Title VII, the plaintiff moved for leave to amend to add Roanoke County as a defendant. Id. The Fourth Circuit concluded that Onan’s claim against the county did not relate back because Rule 15(c) did not permit the addition of a new defendant: “Rule 15(c)(3) permits a plaintiff to name a new defendant in place of an old one, but does not permit a plaintiff to name a new defendant in addition to the existing ones.” Id. at *2 (citing Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir.1994); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993); In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir.1991); Jacobson v. McIlwain, 145 F.R.D. 595, 603 (S.D.Fla.1992); Jordan v. Tapper, 143 F.R.D. 567, 573-74 (D.N.J.1992)). Ordinarily citation to unpublished decisions is disfavored in this circuit, but I believe that no other published decision adequately controls this point of law. See 4th Cir. R. 36(c) (permitting citation to relevant unpublished decision when counsel serves copy of decision on opposing party and court). Plaintiff contends that two cases from the Western District of Virginia imply that Rule 15(c) may be used to add a party without dropping another party. The first of these cases, Fitzpatrick v. Marion Corr. Treatment Cir., No. 1:00cv00127, 2001 WL 1526287 (WD.Va. Nov.30, 2001) (unpublished), is" }, { "docid": "21031169", "title": "", "text": "a defense on the merits. See Fed.R.Civ.P. 15(c); Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1408 n. 3 (11th Cir.1998). As a preliminary matter, Olin argues that Plaintiffs amendment does not meet the requirements of Rule 15(c) because her amendment adds a defendant, rather than changes the defendant named in the original complaint. (See Olin’s Reply at 7-10.) The Eleventh Circuit’s recent decision in Powers v. Graff, 148 F.3d 1223 (11th Cir.1998), requires that the court reject Olin’s argument. In Powers, the plaintiffs filed suit against a brokerage company and a group of individual brokers alleging federal securities law violations. See 148 F.3d at 1224-25. After the applicable statute of limitations had expired, the plaintiffs amended their complaint to add several defendants. See id. at 1225. The district court granted the added defendants’ motion for summary judgment, finding that the amendment did not relate back and was, thus, untimely. See id. On appeal, the Eleventh Circuit affirmed. See id. The Eleventh Circuit stated that the purpose of Rule 15(c) is to permit amended complaints to relate back to the date of the original complaint when the amended complaint corrects a “mistake” about the identity of the defendant. Id. at 1226. However, the Powers court held that the purpose of Rule 15(c) is not furthered in “cases where the newly added defendants were known to the plaintiff before the running of the statute of limitations and where the potential defendants should not necessarily have known that, absent a mistake by the plaintiff, they would have been sued.” Id. The Powers’ court reasoned that F.R.C.P. 15(c)’s requirements were not satisfied because the plaintiffs knew the identities of the defendants early in the litigation and should have known that they were the proper parties to the suit. See id. at 1227. “Before the statute of limitations period ran, Plaintiffs knew Defendants’ identities____[Ojnly when [one of the original Defendants] faced possible insolvency did Plaintiffs amend their complaint to add these known Defendants.” Id. Accordingly, the court concluded that there was never a “mistake” about the identities of the defendants; rather, plaintiffs made a" }, { "docid": "3287356", "title": "", "text": "just to correcting a misnomer. The plain language of the rule states that the requirements of Rule 15(c)(3) apply to “amendment[s] changing] the party or the naming of the party” and therefore Rule 15(c) most clearly contemplates that changing a party can relate back. Since the Rule on its face draws no distinction between the two scenarios, I feel constrained to conclude that Rule 15(c)(3) allowed Lundy to relate back the addition of the Carlinos as defendants. See Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 928, 112 L.Ed.2d 1140 (1991) (holding that courts are to ‘“give the Federal Rules of Civil Procedure their plain meaning’ ” (quoting Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989))). Adding a party is essentially no different from changing a party. The minor difference between the addition and the replacement of a party is whether the original defendant is dismissed in addition to the new defendant being added, which is not ipso facto conclusive as to what the defendant to be added knew or should have known concerning whether the plaintiff was mistaken about the newly-added defendant’s identity. Most courts have thus held that a new party may be added or substituted for another. Most importantly, this Circuit has interpreted Rule 15(c) to allow for the addition of a new party. See Bloomfield Mech. Contracting, Inc. v. Occupational Safety & Health Review Comm’n, 519 F.2d 1257, 1262 (3d Cir.1975) (explaining, in the context of the addition of other parties, that the purpose of Rule 15(c) “is to ameliorate the effect of a statute of limitations where the plaintiff has sued the wrong party but where the right party has had adequate notice of the institution of the action” (emphasis supplied)). Allowing for the addition of a new party is particularly compelling in circumstances where, as here, the need for the addition was caused by the plaintiff’s misunderstanding concerning the fact that two separate legal entities were operating within the same physical structure. Certainly the separate legal" }, { "docid": "22832638", "title": "", "text": "takes the position that the amendment of a “John Doe” complaint — i.e., the substituting of real names for “John Does” or “Unknown Persons” named in an original complaint — does not meet the “but for a mistake” requirement in 15(c)(3)(B), because not knowing the identity of a defendant is not a mistake concerning the defendant’s identity. See Wilson v. United States, 23 F.3d 559, 563 (1st Cir.1994); Barrow v. Wethersfield Police Dept., 66 F.3d 466, 469 (2d Cir.1995), amended by 74 F.3d 1366 (2d Cir.1996); W. Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.1989); Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir.1998); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993); Powers v. Graff, 148 F.3d 1223, 1226-27 (11th Cir.1998). This is, of course, a plausible theory, but in terms of both epistemology and semantics it is subject to challenge. In Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir.1977), this Court appeared to have reached the opposite conclusion insofar as we held that the amendment of a “John Doe” complaint met all of the conditions for Rule 15(c)(3) relation back, including the “but for a mistake” requirement. In Varlack, the plaintiff had filed a complaint against, inter alia, an “unknown employee” of a branch of the Orange Julius restaurant- chain, alleging that this employee had hit him with a two-by-four in a fight, which caused him to fall through a plate glass window, injuring his arm so severely that it had to be amputated. After the statute of limitations had run, the plaintiff sought to amend his complaint to change “unknown employee” to the employee’s real name, using Rule 15(c)(3) to have the amended complaint relate back to the original. The newly named defendant testified that he had coincidentally seen a copy of the complaint naming both Orange Julius and an “unknown employee” as defendants, and that he had known at that time that he was the “unknown employee” referred to. This Court affirmed the district court’s grant of the 15(c)(8) motion, holding" }, { "docid": "3363892", "title": "", "text": "1136, 1140 (E.D.Pa.1990); Diem v. City & County of San Francisco, 686 F.Supp. 806, 811 (N.D.Cal.1988); and Acampora v. Boise Cascade Corp., 635 F.Supp. 66, 71 (D.N.J.1986). . Although not briefed by either party, some courts have held that the requirements of Rule 15(c)(3) do not apply when the amended complaint merely corrects a misnomer of the proper defendant already before the court. Instead, courts follow the general rule permitting an amendment to relate back in order to correct misnomer of the proper defendant. Wilson v. United States, 23 F.3d 559, 563 (1st Cir.1994) (citing Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993)) and Wood v. Worachek, 618 F.2d 1225, 1229 (7th Cir.1980). See also Marks v. Prattco, Inc., 607 F.2d 1153, 1156 (5th Cir.1979). This general rule is in accordance with the intended interpretation of the amended Rule 15. The Advisory Committee Notes relating to the 1991 amendment of Rule 15 states: \"The rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense.” Specific to the issue at bar, the Advisory Committee Notes continue that as long as the notice requirement of Rule 4(m) is met, \"a complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification.” While there is no doubt that a corporation has a right to be sued in its correct name, it is also true that the 1991 amendment was enacted precisely to avoid what the now correctly named defendant is attempting to secure, a dismissal." }, { "docid": "22450417", "title": "", "text": "the Advisory Committee on Rules accompanying the 1991 Amendment to Rule 15(c) shed some light on what the rule is intended to allow. The Notes, in describing the effect of the amendment, state: An intended defendant who is notified of an action within the period allowed by Rule 4(m) for service of a summons and complaint may not under the revised rule defeat the action on account of a defect in the pleading with respect to the defendant’s name, provided that the requirements of clauses of (A) and (B) have been met. If the notice requirement is met within the Rule 4(m) period, a complaint may be amended at any time to correct a formal defect such as a misnomer or mis-identification. Notes of the Advisory Committee on Rules, 1991 Amendment to Rule 15(c) (emphasis added). This commentary implies that the rule is meant to allow an amendment changing the name of a party to relate back to the original complaint only if the change is the result of an error, such as a misnomer or misidentifieation. The Seventh Circuit has thus interpreted Rule 15(c), holding that the rule permits an amendment to relate back only where there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake, but it does not permit relation back where ... there is a lack of knowledge of the proper party. Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (quoting Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.1980)) (emphasis added). The First and Fourth Circuits have also adopted this interpretation of Rule 15(e). See Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir.1994); Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.1989). See also Talbert v. Kelly, 799 F.2d 62, 66 n. 1 (3d Cir.1986) (the use of “John Doe” defendants did not extend or toll the statute of limitations); but see Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174-75 (3d Cir.1977) (amended complaint adding a specific employee related back to original complaint" }, { "docid": "3287355", "title": "", "text": "adopted it as correct for our purposes), as the majority acknowledges, see Maj.Op. at 1183 n. 14, we are to review the factual conclusion that the Carlinos should have known that they were intended defendants for clear error. See Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174 (3d Cir.1977) (establishing that the question of whether the conditions of Rule 15(c), including whether the party to be added “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him,” have been met is a question of fact subject to review for clear error). Accordingly, the majority seems to be holding that the magistrate judge clearly erred in his finding, see Maj. Op. at 1183 n. 14, although it fails to point to any contrary evidence in the record besides the allegations in Lundy’s Complaint and Lundy’s delay. (1) Adding a Party Under Rule 15(c)(3)(B) Regarding the first issue, Rule 15(c) on its face applies to the changing of a party, not just to correcting a misnomer. The plain language of the rule states that the requirements of Rule 15(c)(3) apply to “amendment[s] changing] the party or the naming of the party” and therefore Rule 15(c) most clearly contemplates that changing a party can relate back. Since the Rule on its face draws no distinction between the two scenarios, I feel constrained to conclude that Rule 15(c)(3) allowed Lundy to relate back the addition of the Carlinos as defendants. See Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 928, 112 L.Ed.2d 1140 (1991) (holding that courts are to ‘“give the Federal Rules of Civil Procedure their plain meaning’ ” (quoting Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989))). Adding a party is essentially no different from changing a party. The minor difference between the addition and the replacement of a party is whether the original defendant is dismissed in addition to the new defendant being added, which is not" }, { "docid": "16396468", "title": "", "text": "Fourth Circuit has verified this reading of the rule. In Onan v. County of Roanoke, 1995 WL 234290, at *1, 1995 U.S.App. LEXIS 9085, at *1 (4th Cir. Apr. 21, 1995), the court held that Rule 15(c)(3) does not allow for the addition of parties. In Onan, a county employee sued several local officials under Title. VII and other statutes. 1995 WL 234290, at *1, 1995 U.S.App. LEXIS 9085, at *1-7. After the expiration of the 90-day statute of limitations, the plaintiff moved for leave to amend to add the county as a defendant. The court refused .to allow the plaintiffs newly asserted claims to relate back because “Rule 15(c)(3) permits a plaintiff to name a new defendant in place of an old one, but does not permit a plaintiff to name a new defendant in addition to the existing ones.” 1995 WL 234290, at *2, 1995 U.S.App. LEXIS 9085, at *6 (citing Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir.1994)); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (stating that an amendment can relate back “to correct a misnomer of a defendant where the proper defendant is already before the court and the effect is ... to correct the name under which he is sued. But a new defendant cannot., be ... added by amendment after the statute of limitations has run.”). Other district courts within this district have reached the same conclusion. See Schieszler v. Ferrum College, 233 F.Supp.2d 796, 801 (W.D.Va.2002) (stating that the phrase “changes the party or the naming of the party” in Rule 15(c)(3) “implies an alteration to the parties in the existing set, not an addition to the set”); Lambright v. Rhone-Poulenc Rorer Pharmaceuticals Inc., 1995 WL 375589, at *1, 1995 U.S. Dist. LEXIS 8541, at *1, 5 (D.Md. June 19, 1995) (“[Although Rule 15(c)(3) permits a plaintiff to name a new defendant in place of an old one, it does not allow her to name a new defendant in addition to the existing ones.”). Thus, both the plain language of Rule 15(c)(3) and clear precedent from this circuit" }, { "docid": "10080194", "title": "", "text": "name a new defendant in place of an old one, but does not permit a plaintiff to name a new defendant in addition to the existing ones.” Id. at *2 (citing Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir.1994); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993); In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir.1991); Jacobson v. McIlwain, 145 F.R.D. 595, 603 (S.D.Fla.1992); Jordan v. Tapper, 143 F.R.D. 567, 573-74 (D.N.J.1992)). Ordinarily citation to unpublished decisions is disfavored in this circuit, but I believe that no other published decision adequately controls this point of law. See 4th Cir. R. 36(c) (permitting citation to relevant unpublished decision when counsel serves copy of decision on opposing party and court). Plaintiff contends that two cases from the Western District of Virginia imply that Rule 15(c) may be used to add a party without dropping another party. The first of these cases, Fitzpatrick v. Marion Corr. Treatment Cir., No. 1:00cv00127, 2001 WL 1526287 (WD.Va. Nov.30, 2001) (unpublished), is clearly inapposite. In that case, the incarcerated pro se plaintiff originally named two immune government defendants, then moved to amend his complaint to name individual officers. In contrast to Schieszler’s assertion, the Fitzpatrick plaintiff attempted to substitute defendants rather than add defendants to the existing slate of parties. Id. at *3. In the second of plaintiffs cited cases of implication, Phillips v. United Fixtures Co., 168 F.R.D. 183 (W.D.Va.1996), it appears that the court did permit an amendment naming a component manufacturer in addition to the existing defendant, the finished product manufacturer. The Northern District of Alabama permitted the amended pleading, then transferred the case to this district, where the magistrate judge was confronted with a summary judgment motion on statute of limitations grounds by the component manufacturer. Id. at 185-86. It does not appear that the parties argued or the court considered this precise question of law — whether Rule 15(c) permits the addition of a party to relate back — and the Phillips decision does not refer to Onan at all. I believe" }, { "docid": "22832637", "title": "", "text": "a defendant. C. But for a Mistake Concerning the Identity of the Proper Party Rule 15(c)(3)(B) provides a. further requirement for relating back an amended complaint that adds or changes a party: the newly added party knew or should have known that “but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Fed.R.Civ.P. 15(c)(3)(B). The plaintiff argues that this condition is met in her proposed amended complaint, but the District Court found otherwise. The defendants also contend that (1) the plaintiff did not make, a mistake as to Regan’s identity, and (2) Regan did not know, nor should he have known, that the action would have been brought against him had his identity been known, because the original complaint named “Unknown Corrections Officers” and Regan is not a corrections officer but a staff psychologist. The issue whether the requirements of Rule 15(c)(3)(B) are met in this case is a close one. We begin by noting that the bulk of authority from other Courts of Appeals takes the position that the amendment of a “John Doe” complaint — i.e., the substituting of real names for “John Does” or “Unknown Persons” named in an original complaint — does not meet the “but for a mistake” requirement in 15(c)(3)(B), because not knowing the identity of a defendant is not a mistake concerning the defendant’s identity. See Wilson v. United States, 23 F.3d 559, 563 (1st Cir.1994); Barrow v. Wethersfield Police Dept., 66 F.3d 466, 469 (2d Cir.1995), amended by 74 F.3d 1366 (2d Cir.1996); W. Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.1989); Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir.1998); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993); Powers v. Graff, 148 F.3d 1223, 1226-27 (11th Cir.1998). This is, of course, a plausible theory, but in terms of both epistemology and semantics it is subject to challenge. In Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir.1977), this Court appeared to have reached the opposite conclusion" }, { "docid": "13515007", "title": "", "text": "dismissal by court order under Rule 41(a)(2) allows the plaintiff to dismiss “an action” on “terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). Although‘some courts have held otherwise, we’ve said that Rule 41(a) “does not speak of dismissing one claim in a suit; it speaks of dismissing ‘an action’ — which is to' say, the whole case.” Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 777 (7th Cir.2001); see also Nelson v. Napolitano, 657 F.3d 586, 588 (7th Cir.2011) (noting that “the purpose of Rule 41(a)(1) is to limit a plaintiffs ability to dismiss an action” (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 397, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990))). Berthold Types and Nelson both concerned Rule 41(a)(1)(A), which allows for voluntarily dismissal without a court order, rather than 41(a)(2), but both provisions refer exclusively to “actions” — which, as Berthold Types said, means the entire case. Since “[w]e give the Federal Rules of Civil Procedure their plain meaning,” Pavelic & LeFlore v. Marvel Entm’t Grp., 493 U.S. 120, 123, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989), Rule 41(a) should be limited to dismissal of an entire action. Because the court offered Taylor the opportunity to dismiss the claim against Officer Brown in the 104 Case while pursuing the claim against the Count 1 defendants, Rule 41(a) was not the proper vehicle. Instead, the court should have offered Taylor the opportunity to amend his pleadings under Rule 15(a). Like Rule 41(a), Rule 15(a) allows a plaintiff to amend his complaint — including by adding or dropping parties and claims — as a matter of right in some situations and by court order in others, and “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Accordingly, we construe Taylor’s response to the show-cause order as a motion to amend his complaint under Rule 15(a)(2) rather than as a motion to voluntarily dismiss an action under Rule 41(a). See McGee v. Bartow, 593 F.3d 556, 565 (7th Cir.2010) (filings by pro se litigants are to be construed liberally). But for consistency’s sake, we" }, { "docid": "5100305", "title": "", "text": "period of time provided for in rule 4(m). If Rule 15(c) applies, an amendment relates back “to the date of the original pleading.” Plaintiff commenced this action by filing a praecipe for a writ of summons on October 18, 1994. He then filed a complaint on February 22, 1995. The first question to answer is whether the writ of summons or complaint was “the original pleading” within the meaning of Rule 15. This case enjoys the dubious distinction of containing an unprecedented number of procedural anomalies. However, because state law controls the pre-removal aspects of the case, if the amendments relate back in time, they relate back to the date of the writ of summons because that was the original filing permitted under state law. Next I must apply Rule 15(c) to determine whether the amendments relate back to the time of the writ of summons. Relation back is only proper where Rule 15(e)’s four criteria are satisfied. One of the criteria is that the party to be brought in by amendment knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The First, Second, Fourth, Sixth, Seventh, and Tenth Circuits have held that designating a “John Doe” in an original pleading is not a “mistake concerning the identity” within the meaning of Rule 15 and, therefore, an amendment containing a party’s true name cannot relate back to the original pleading which only identified the party with a fictitious name. See Wilson v. United States, 23 F.3d 559, 563 (1st Cir.1994); Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468 (2nd Cir.1995); Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.1989); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993); Watson v. Unipress, Inc., 733 F.2d 1386 (10th Cir.1984). In addition, relation back would not be proper here because there was no way that McQuiggan and Cassidy could have known within the relevant time period that their being brought into the suit" }, { "docid": "16396467", "title": "", "text": "statute of limitations should that statute apply. Rule 15(c)(3) allows an amendment of a pleading to re late back to the date of the original pleading when the amendment changes the party or the naming of the party against whom a claim is asserted if [the amended pleading arose out of the transaction set forth in the original pleading] and, within the period provided by Rule 4(m) for service of the summons and complaint,- the party to be brought in by -amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the -identity of the proper party, the action would have been, brought against the party. Fed.R.Civ.P. 15(c)(3). In the court’s opinion, the plain language of the rule only contemplates relation back when a new party is substituted for an existing plaintiff, and not in the present situation where a new party is simply added. The Fourth Circuit has verified this reading of the rule. In Onan v. County of Roanoke, 1995 WL 234290, at *1, 1995 U.S.App. LEXIS 9085, at *1 (4th Cir. Apr. 21, 1995), the court held that Rule 15(c)(3) does not allow for the addition of parties. In Onan, a county employee sued several local officials under Title. VII and other statutes. 1995 WL 234290, at *1, 1995 U.S.App. LEXIS 9085, at *1-7. After the expiration of the 90-day statute of limitations, the plaintiff moved for leave to amend to add the county as a defendant. The court refused .to allow the plaintiffs newly asserted claims to relate back because “Rule 15(c)(3) permits a plaintiff to name a new defendant in place of an old one, but does not permit a plaintiff to name a new defendant in addition to the existing ones.” 1995 WL 234290, at *2, 1995 U.S.App. LEXIS 9085, at *6 (citing Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir.1994)); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (stating that" }, { "docid": "10539092", "title": "", "text": "were met. We concluded, based on the facts of that case, that the added defendant, a' 97% owner of the corporation named in the original complaint, was on notice of the action from the time of the original complaint. We wrote that the owner “knew or should have known, but for a mistake by Itel, ... he would have been named as a defendant when the complaint was filed.” Id. at 1258. Itel established no general- rules about suits originally filed against a corporation where the plaintiff later attempts to add corporate control persons or owners as individual defendants. Although the relation back provisions of Rule 15 are to be somewhat liberally applied, the purpose of the provision does not support relation back in cases like this one: cases where the newly added defendants were known to the plaintiff before the running of the statute of limitations and where the potential defendants should not necessarily have known that, absent a mistake by the plaintiff, they would have been sued. When relation back is too liberally allowed the important policy reasons for limitations periods are circumvented. Cf. Wells v. HBO & Co., 813 F.Supp. 1561, 1567 (N.D.Ga.1992) (“Rule 15(c) plainly provides that potential defendants are entitled to repose after a certain period unless they know they have escaped suit only by mistake.”). The purpose of Rule 15(c) is to permit amended complaints to relate back to original filings for statute of limitations purposes when the amended complaint is correcting a mistake about the identity of the defendant. See Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (Relation back applies where the amendment is made “to correct a misnomer of a defendant where the proper defendant is already before the court and the effect is merely to correct the name under which he is sued.”). See generally Hill v. United States Postal Serv., 961 F.2d 153 (11th Cir.1992) (permitting pro se plaintiffs amended complaint to relate back when he mistakenly named postal service instead of postmaster as defendant, contrary to statutory requirements); see also Schiavone v. Fortune, 477 U.S. 21, 106" }, { "docid": "17836775", "title": "", "text": "In addition to the notice clause of subpart (3)(A), however, the “mistake clause” of subpart (3)(B) must also be satisfied for the amended complaint to “relate back.” Where the change in naming parties or substituting new parties was not the result of a mistake, i.e., misidentifieation or misnomer, but rather because the plaintiff did not know the identity of the defendant originally, the relation-back doctrine does not apply. Jacobsen, 133 F.3d at 320-21, citing Barrow v. Wethersfield, 66 F.3d 466, 470 (2d Cir.1995)(“Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities.”), modified on other grounds, 74 F.3d 1366 (2d Cir.1996); Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir.1993)(“Because Worthington’s failure to name [the correct officers] was due to a lack of knowledge as to their identity, and not a mistake in their names, Worthington was prevented from availing himself of the relation back doctrine of Rule 15(c).”); and Wilson v. United States Government, 23 F.3d 559, 562-63 (1st Cir.1994)(relation back is not allowed when the plaintiff simply lacks knowledge of the proper party). In Lead Plaintiffs Memorandum in Opposition to the Bank Defendants’ Motions to Dismiss the First Amended Consolidated Complaint (# 1574) at 24, Lead Plaintiff has argued “mistake in fact as to identity” and “mistake in law” and insists that “Bank Defendants, with their superior information concerning the identity and involvement of their subsidiaries in the Enron fraud, ought to have anticipated (and did) that culpable entities would be added as defendants here, after correct identities were revealed.” Lead Plaintiff objects to Bank Defendants’ characterization that Lead Plaintiff made a deliberate tactical or strategic decision to name only certain bank entities and thus is not entitled to “relation back” pursuant to Fed.R.Civ.P. 15(c); Lead Plaintiff claims that on April 8, 2002, when it filed the First Consolidated Complaint, its “naming of the bank defendants originally sued was based on the limited information then available, without the benefit of documents and testimony later obtained and released by" }, { "docid": "22450418", "title": "", "text": "or misidentifieation. The Seventh Circuit has thus interpreted Rule 15(c), holding that the rule permits an amendment to relate back only where there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake, but it does not permit relation back where ... there is a lack of knowledge of the proper party. Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (quoting Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.1980)) (emphasis added). The First and Fourth Circuits have also adopted this interpretation of Rule 15(e). See Wilson v. United States Government, 23 F.3d 559, 563 (1st Cir.1994); Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.1989). See also Talbert v. Kelly, 799 F.2d 62, 66 n. 1 (3d Cir.1986) (the use of “John Doe” defendants did not extend or toll the statute of limitations); but see Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174-75 (3d Cir.1977) (amended complaint adding a specific employee related back to original complaint naming “unknown employee”). We are compelled to agree with our sister circuits that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. Rule 15(c) explicitly allows the relation back of an amendment due to a “mistake” concerning the identity of the parties (under certain circumstances), but the lack of knowledge of a party’s identity cannot be characterized as a mistake. Barrow’s failure in his first three complaints to specify the defendants’ names, and his listing of ten “John Does” in the complaint of July 1, 1991, were because he did not know the arresting officers’ names. His amended complaint identifying six police officers by name — filed, by any calculation, after the statute of limitations had run — did not correct a mistake in the original complaint, but instead supplied information Barrow lacked at the outset. Since the new names were added not to correct a mistake but to correct a lack of knowledge," }, { "docid": "10502151", "title": "", "text": "Fludd v. U.S. Secret Service, 102 F.R.D. 803, 806 (D.D.C.1984) (relation back allowed where plaintiff initially lacked knowledge of party’s name and subsequently added it); and Williams v. Avis Transport of Canada, 57 F.R.D. 53, 55 (D.Nev.1972) (mistake occurs whenever a party who may be liable was omitted as defendant); with Wilson v. U.S., 23 F.3d 559, 563 (1st Cir.1994) (Rule 15(c) not designed to remedy lack of knowledge of proper party); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (15(c)(3) does not permit relation back where there is lack of knowledge of proper party); and Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.1989) (same). This Court has found that excusable neglect by plaintiff is relevant to determining whether plaintiffs mistake was merely tactical or a true mistake in identity. Wandrey v. Service Business Forms, Inc., 762 F.Supp. 299, 302 (D.Kan.1991). Plaintiff states that he named John Doe Construction Company in the original complaint and then quickly and expeditiously discovered that TPM performed the construction work. In other words, the identity of TPM was easily available to plaintiff, but he chose to wait until the statute of limitations had expired before making any attempt to discover it. Plaintiff states no reason for his delay. Because plaintiff could have discovered the identity of TPM before the limitations period had expired, his failure to do so is not excusable neglect and represents a tactical mistake instead of a true mistake in identity. See Wandrey, 762 F.Supp. at 301. Thus, the amendment adding TPM does not relate back to the original complaint under Rule 15(e). Id. Plaintiffs claims against TPM are therefore barred by the two-year statute of limitations. IT IS THEREFORE ORDERED that the Defendant TPM Construction Corporation’s Motion to Dismiss (Doc. # 25) should be and hereby is sustained. Dated this 18th day of August, 1994, in Kansas City, Kansas. MEMORANDUM AND ORDER OVERRULING RECONSIDERATION This matter comes before the Court on plaintiff John P. Bloesser’s Motion to Reconsider (Doc. # 60). On August 18, 1994, the Court entered an order sustaining defendant TPM Construction Corporation’s" }, { "docid": "22587304", "title": "", "text": "Services, Inc.; (2) that Goodman “was fully aware of the existence of [Praxair Services, Inc.] and its correct name,” and therefore his mistake in naming only Praxair, Inc., in the original complaint was not the type of mistake on which Rule 15(c)(3) acts; and (3) that it was doubtful that Praxair Services, Inc., “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been properly brought against it,” as required by Rule 15(c)(3)(B), because there was “no mistake to the existence, name and relevant action taken by [Praxair Services, Inc.].” Goodman contends that the district court erred in all three of its rulings — contentions that we now address. A Goodman argues that by adding Praxair Services, Inc., as a defendant to the amended complaint, he “changed” the party he was suing, as required by Rule 15(c)(3), because “an addition to something is generally regarded as a change to that thing.” See Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1192-93 & n. 13 (3d Cir.1994) (citing cases); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1498 (2d ed. 1990) (“The word ‘changing’ has been liberally construed by the courts, so that amendments simply adding or dropping parties, as well as amendments that actually substitute defendants, fall within the ambit of the rule”). The Praxair defendants argue that “the language of Rule 15(c)(3) makes clear that it requires change of an existing party— not merely a change in the overall composition of the parties collectively.” Thus, as they reason, the Rule applies only to an amendment where a party is substituted for another, not added to the complaint. See Wilson v. United States, 23 F.3d 559, 563 (1st Cir.1994); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993); In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1450 (6th Cir.1991). Although we adopt Goodman’s position as the better interpretation of Rule 15(c), even if we were to accept the Praxair defendants’ interpretation, it still appears that the" }, { "docid": "3287404", "title": "", "text": "1498, at 103-04 (stating that Rule 15(c) \"alters the general rule that new parties ... cannot be added to an action by amendment after the applicable limitations period has expired\" (emphasis supplied)), cited with approval in Bloomfield Mech. Contracting, Inc. v. Occupational Safety & Health Review Comm’n, 519 F.2d 1257, 1262 (3d Cir.1975); Dandrea v. Malsbary Mfg. Co., 839 F.2d 163, 166 (3d Cir.1988) (deciding whether plaintiff’s amendment changed the party or merely updated the party's name); Mitchell v. Hendricks, 68 F.R.D. 564 (E.D.Pa.1975) (allowing plaintiff's amendment of his complaint to relate back where plaintiff mistakenly named the wrong person as the defendant and the newly named defendant had received informal notice of plaintiff’s initial corn-plaint). But cf. Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir.1993) (reading Rule 15(c) to exclude naming a different party \"due to a lack of knowledge as to their identity\" rather than as to their correct name); Campbell v. Ward, 792 F.Supp. 1150, 1153 (E.D.Mo.1992) (same); Wells v. HBO & Co., 813 F.Supp. 1561, 1567 (N.D.Ga.1992) (denying plaintiff's motion to amend complaint where plaintiff had deliberately not sued a party whose identity plaintiff had known from the outset). The many other courts to have recognized the \"identity of interest\" exception to Rule 15(c) have also necessarily held that Rule 15(c) allows for the addition of a party, rather than only for the correction of a party’s name. See, e.g., In re Allbrand Appliance & Television Co., 875 F.2d 1021, 1025 (2d Cir.1989). See generally Wright et al., Federal Practice and Procedure § 1459. . Federal pleading rules rely only on \"notice pleading.” See Fed.R.Civ.P. 8(a)(2) (a complaint shall set forth \"a short and plain statement of the claim showing that the pleader is entitled to relief\" (emphasis supplied)). The Supreme Court rehearsed the proper role of pleadings in Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957): [T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require" }, { "docid": "22574481", "title": "", "text": "defendant may relate back under amended Rule 15(c)(3). We conclude that, in the circumstances present in this ease, relation baek should not be allowed. This is consistent with the majority of the other circuits that have considered the issue. They have held that, for a “John Doe” defendant, there was no “mistake” in identifying the correct defendant; rather, the problem was not being able to identify that defendant. The Second Circuit has held in a case interpreting the 1991 and 1993 amendments that “Rule 15(e) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named.originally because the plaintiff did not know their identities”. Barrow, 66 F.3d at 470. This result is necessitated by the goals of relation-back and Rule 15(c)(3): to correct a mistake concerning the identity of a party. Id. The Second Circuit reasoned that failing to identify individual defendants cannot be characterized as a mistake. Id. In interpreting the amended Rule, the Seventh Circuit reached the same result in Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir.1993). For the Worthington § 1983 action, the plaintiff sued “unknown named police officers”. After limitations had run, the plaintiff moved to substitute as defendants the two officers involved in his arrest. In affirming the denial of that motion, the Seventh Circuit held: “Because Worthington’s failure to name [the correct officers] was due to a lack of knowledge as to their identity, and not a mistake in their names, Worthing-ton was prevented from availing himself of the relation back doctrine of Rule 15(c)”. Id. at 1257. And, in a case decided after the amendments to Rule 15(c), the First Circuit endorsed the view that relation back is not allowed when the plaintiff simply lacks knowledge of the proper party. Wilson v. United States Government, 23 F.3d 559, 562-63 (1st Cir.1994). In Wilson, the plaintiff, after filing suit against the wrong party, sought to substitute the United States after limitations had run. Id. at 560-61. In affirming the time-bar, the First Circuit noted that the United States had not received notice of the" } ]

[ { "docid": "22615757", "title": "", "text": "U. S. C. § 2000e-5 (b) (1970 ed., Supp. II) (EEOC); 42 U. S C. § 2000e-5 (c) (1970 ed., Supp. II) (state and local agencies); 42 U. S. C. § 2000e-5 (f) (1970 ed., Supp. II) (federal courts). And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions re lating to employment discrimination. In sum, Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement. In reaching the opposite conclusion, the District Court relied in part on the doctrine of election of remedies. That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent, has no application in the present context. In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statu tory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. The resulting scheme is somewhat analogous to the procedure under the National Labor Relations Act, as amended, where disputed transactions may implicate both contractual and statutory rights. Where the statutory right underlying a particular claim may not be abridged by contractual agreement, the Court has recognized that consideration of the claim by the arbitrator as a contractual dispute under the collective-bargaining agreement does not preclude subsequent consideration of the claim by the National Labor Relations Board as an unfair labor" } ]

[ { "docid": "18580512", "title": "", "text": "GODBOLD, Chief Judge: In Part III of our opinion we held that Proudfoot’s cause of action against his employer, Crowley, accrued when Crowley dismissed Proudfoot on January 17, 1983, and, since Proudfoot’s complaint was not filed until April 16, 1984, the cause of action against Crowley was barred by the six-month period allowed in which to sue. On reconsideration we conclude this holding was incorrect. The Supreme Court in DelCostello v. International Brotherhood, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) held that the six-month statute of limitations prescribed by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), applies to hybrid suits under § 301 alleging that the employer has breached the collective bargaining agreement and that the union has breached its duty of fair representation. The Court in DelCostello did not decide when the six-month period begins to run. But the Court acknowledged that a § 301 hybrid suit actually involves two separate actions: one against the employer under § 301 for breach of the collective bargaining agreement and one against the union for breach of its implied duty of fair representation. 462 U.S. at 164, 103 S.Ct. at 2290. Although these causes of action are distinct, they are interdependent. To prevail on his claim against the employer, the employee must prove not only that the employer breached the collective bargaining agreement but also that the union violated its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. To prevail against the union, in addition to proving that the union did not discharge the duty it owed him the employee must also show that the employer’s actions violated the collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976); DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Thus the separate causes of action accrue simultaneously. The general rule is that § 10(b)’s six-month limitation period starts running when the plaintiff was or should" }, { "docid": "22684255", "title": "", "text": "an unchallenged finding that the union did not breach its duty of fair representation in doing so. Accordingly, they conclude that petitioners should be barred from bringing the statutory component of their wage claim in federal court. We reject this argument. Not all disputes between an employee and his employer are suited for binding resolution in accordance with the procedures established by collective bargaining. While courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers. These considerations were the basis for our decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). In that case, petitioner, a black employee, had been discharged by respondent employer, allegedly for producing too many defective parts. Claiming that his discharge was racially motivated, petitioner asked his union to pursue the grievance and arbitration procedure set forth in the collective-bargaining agreement. The union did so, relying on the nondiscrimination clause in the collective-bargaining agreement, but the arbitrator found that petitioner had been discharged for just cause. Petitioner then brought an action under Title VII of the Civil Rights Act of 1964 in Federal District Court based on the same facts that were before the arbitrator. The District Court granted summary judgment for the employer, holding that petitioner was bound by the prior adverse arbi-tral decision. The Court of Appeals affirmed. This Court reversed, concluding that an employee’s statutory right to a trial de novo under Title VII is not foreclosed by the prior submission of his discrimination claim to final arbitration under a collective-bargaining agreement. The Court found that in enacting Title VII, Congress had granted individual employees a nonwaivable, public law right to equal employment opportunities that was separate and distinct from the rights created through the “majoritarian processes” of collective bargaining. Id., at 51. Moreover, because Congress had granted aggrieved employees access to the courts, and because contractual grievance and arbitration procedures provided an inadequate forum" }, { "docid": "1019356", "title": "", "text": "29 U.S.C. § 401 et seq. (LMRDA), by failing to provide them with a copy of the collective bargaining agreement. In two separate opinions, the district court found that the statute of limitations had run against appellants’ Railway Labor Act claim involving the union, Linder v. Berge, 567 F.Supp. 913 (D.R.I.1983) (Linder I), and against their claim involving Amtrak, Linder v. Berge, 577 F.Supp. 279 (D.R.I.1983) (Linder II). The court adopted the reasoning of a recent Supreme Court decision in which the Court applied a six-month statute of limitations to similar claims against union and employer brought under the National Labor Relations Act, 29 U.S.C. § 151 et seq., and under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The district court also found that appellants lacked standing to pursue their claim under the LMRDA. We affirm. The plaintiffs in DelCostello alleged that their employers had breached § 301 of the Labor Management Relations Act by violating a collective bargaining agreement, and that their unions had breached the duty of fair representation implied under the National Labor Relations Act by failing properly to handle their grievances against the employers. Neither Act provided a limitations period applicable to these claims. The Supreme Court had in the past adopted the practice of borrowing appropriate state statutes of limitation for § 301 claims against an employer. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) (adopting a state statute of limitations applicable to appeals from arbitral awards); United Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (adopting a state statute of limitations applicable to breach of contract actions). In DelCostello, however, the Court decided that borrowing state statutes of limitation was not appropriate in the context of hybrid § 301/unfair representation claims. It held that these claims should be subject to the six-month limitations period provided in § 10(b) of the National Labor Relations Act. DelCostello, 462" }, { "docid": "18599010", "title": "", "text": "S.Ct. 441, 446, 50 L.Ed.2d 427 (1976) (pending grievance or arbitration procedures under the collective bargaining agreement did not toll the statute of limitations for filing a claim with the EEOC, stressing that the Supreme Court had previously reaffirmed the independence of Title VII remedies from other preexisting remedies available to an aggrieved employee). The precedents of Johnson, Alexander, and International Union of Electrical Workers Local 790 persuade us that the hybrid section 301/fair representation claim, based in part on rights under the collective bargaining agreement, is independent of a claim under Title VII, and thus the time for filing a section 301/fair representation claim is not tolled by pursuing a Title VII claim with the EEOC. There are also policy considerations that weigh against tolling the statute of limitations on the section 301/fair representation cause of action until Title VII procedures are completed by the EEOC. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983), the Supreme Court ruled that the statute of limitations for a hybrid section 301/fair representation suit was six months. The Court emphasized “the relatively rapid final resolution of labor disputes favored by federal law,” and likened the breach of the duty of fair representation claim to the claim of a union unfair labor practice before the National Labor Relations Board, from which the six-month statute was borrowed. Id. at 168, 170, 103 S.Ct. at 2292, 2293. Policies supporting the need to rapidly resolve labor disputes weigh against tolling the stat ute of limitations for section 301/fair representation claims — to do so would undermine the reasoning and ruling of DelCostello. We therefore hold that the policy considerations do not favor, and indeed weigh against tolling the statute of limitations for a section 301/fair representation claim while Title VII charges are pending with the EEOC. We affirm the district court’s decision to grant summary judgment on the ground that the hybrid claim is barred by the statute of limitations. IV. ATTORNEYS’ FEES Local 142 requests attorneys’ fees and costs in connection with this appeal. In" }, { "docid": "11777609", "title": "", "text": "and the service of a copy thereof upon the person against whom such charge is made.” 29 U.S.C. § 160(b) (1982). In Del-Costello the Supreme Court held that this provision, which when read literally relates only to filing charges with the National Labor Relations Board, should also apply to so-called “hybrid” cases in which employees sue both their employer for breach of the collective bargaining agreement pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982), and their union for breach of its duty of fair representation in mishandling the re? lated grievance and arbitration proceedings. See DelCostello, 462 U.S. at 154, 103 S.Ct. at 2285. While plaintiffs have not alleged here a DelCostello-type, hybrid § 301/duty of fair representation claim, they have alleged that during the negotiation and administration of the several collective bargaining agreements, the union in concert with NYRA unfairly discriminated against them, and thereby breached the union’s duty of fair representation. Due to the undeniable resemblance and substantial overlap between unfair labor practices and breaches of the duty of fair representation, see DelCostello, 462 U.S. at 169, 103 S.Ct. at 2293, we read DelCostello to require that the § 10(b) six-month limitations period also be applied to unfair representation claims standing alone, see Engelhardt v. Consolidated Rail Corp., 756 F.2d 1368, 1369-70 (2d Cir.1985) (per curiam); Erkins v. United Steelworkers, 723 F.2d 837, 838 (11th Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984). A cause of action based on the duty of fair representation accrues when the union members know or reasonably should know that a breach of that duty has occurred. Santos v. District Council, 619 F.2d 963, 969 (2d Cir.1980). Thus, if plaintiffs’ claims rested, as Judge Costantino seems to have assumed, solely on the activities of the union and NYRA during the negotiations for and ratification of the several agreements, such claims would have been time-barred at the latest six months after ratification of the last agreement, or by July 26, 1982. However, plaintiffs in opposing the motions to dismiss contended additionally that" }, { "docid": "11777608", "title": "", "text": "are irrelevant to the statute of limitations issue. On the authority of DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the district court applied to this case the six-month limitations period set forth in § 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b) (1982). Viewing plaintiffs’ claim as one for breach of duty by the union in negotiating the collective bargaining agreements, Judge Costantino held the complaint, filed on March 3, 1983, to be time-barred, because “plaintiffs’ cause of action arose, at the very latest, on or about the time of the ratification of the 1982 Agreement, that is, January 26, 1982”. DISCUSSION We agree with Judge Costantino that the DelCostello Court’s analysis of the limitations provision in § 10(b) of the NLRA applies equally to this case. Section 10(b) provides in relevant part that “no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the [National Labor Relations] Board and the service of a copy thereof upon the person against whom such charge is made.” 29 U.S.C. § 160(b) (1982). In Del-Costello the Supreme Court held that this provision, which when read literally relates only to filing charges with the National Labor Relations Board, should also apply to so-called “hybrid” cases in which employees sue both their employer for breach of the collective bargaining agreement pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982), and their union for breach of its duty of fair representation in mishandling the re? lated grievance and arbitration proceedings. See DelCostello, 462 U.S. at 154, 103 S.Ct. at 2285. While plaintiffs have not alleged here a DelCostello-type, hybrid § 301/duty of fair representation claim, they have alleged that during the negotiation and administration of the several collective bargaining agreements, the union in concert with NYRA unfairly discriminated against them, and thereby breached the union’s duty of fair representation. Due to the undeniable resemblance and substantial overlap between unfair labor practices and breaches of" }, { "docid": "5668294", "title": "", "text": "BUTZNER, Senior Circuit Judge: After John Murray was discharged by Branch Motor Express Company, his union ■ filed a grievance on his behalf. When the parties failed to resolve the dispute, the matter was submitted to arbitration. The arbitrator concluded that Murray’s discharge was proper in an award dated April 22, 1976. On September 13, 1978, Murray filed an action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, charging Branch with breach of the collective bargaining agreement, and the union with breach of its duty of fair representation by mishandling the matter. The district court granted summary judgment for Branch and the union because, in addition to the claim’s lack of merit, the action was barred by Maryland’s 30-day statute of limitations for vacation of arbitration awards which was made applicable by United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). While Murray’s appeal was pending, the Supreme Court held that the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160, applies to actions brought by an employee for breach of contract and breach of fair representation. DelCostello v. International Brotherhood of Teamsters, _ U.S. _, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Generally, “an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801). Murray contends, however, that DelCostello should not be applied retroactively, relying on Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). We are persuaded by Perez v. Dana Corp., 718 F.2d 581 (3d Cir.1983), that Del-Costello should be applied retroactively. In that case, the court found that, applying the Chevron test, the six-month statute of limitations was not an abrupt and fundamental shift in a doctrine on which the plaintiff relied because the prior" }, { "docid": "3912971", "title": "", "text": "F.3d 212, 216 (6th Cir.1994) (citations omitted). Under this approach, preemption is required when resolving the plaintiffs claim will not involve direct interpretation of a precise term of the collective bargaining agreement, but will require a court to address relationships created through the collective bargaining process and to mediate a dispute founded upon rights created by the collective bargaining agreement. Id. at 218 (citing Jones v. General Motors Corp., 939 F.2d 380, 382-83 (6th Cir.1991)). Workman’s claim of wrongful termination, based on an alleged breach of a collective bargaining agreement (Count I), must proceed, if at all, under § 301 of the LMRA, particularly given Workman’s accompanying claim that the union breached its duty of fair representation (Count II). In such a “hybrid § 301/fair representation” case, the claims against the employer and the union are “inextricably interdependent.” DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Thus, in order to prevail against either party, the plaintiff “must not only show that [his] discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.” Id. at 165, 103 S.Ct. 2281. In its motion however, the union argues that it is entitled to summary judgment in its favor because Workman neglected to file his complaint within the applicable six-month statute of limitations, resulting in his § 301 claim being time-barred. This case is a hybrid § 301/un-fair representation action because Workman alleges both a breach of a collective bargaining agreement by United and a breach by the union of its duty of fair representation. As noted by a Sixth Circuit panel in Fox v. Parker Hannifin Corp., 914 F.2d 795 (6th Cir.1990), In DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court conclusively established that section 301 actions brought by individual employees are governed by the six-month statute of limitations borrowed from section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). According to the settled law in this circuit, a section" }, { "docid": "6717956", "title": "", "text": "the award is time-barred by the provisions of the United States Arbitration Act of 1925, 9 U.S.C. § 12. Therefore, plaintiff’s motion to vacate the award is denied, and this case is dismissed. DISCUSSION In DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court ruled that the six month limitations period of § 10(b) of the National Labor Relations Act is applicable to the employee’s breach of duty of fair representation claim against his union and breach of collective bargaining agreement claim against his employer. The Court adopted § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), because § 301 of the Labor Management Relations Act does not contain a limitations period. Prior to DelCostello, the courts looked to “the nature of the cause of action” and applied the most analogous state statute of limitations to claims brought under § 301. See Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (suit by union against company for breach of collective bargaining agreement). Although DelCostello establishes a statute of limitations period for hybrid claims under § 301, it does not address actions arising solely under § 301 or, more specifically, suits to vacate arbitration awards brought directly under § 301. See DelCostello, 452 U.S. at 158-59, 103 S.Ct. at 2287, fn. 12. Every court of appeals which has considered this issue in the arbitration context has concluded the holding of DelCostello does not apply to such suits. Federation v. Westinghouse Electric Corp., 736 F.2d 896 (3rd Cir.1984) (suit to compel arbitration, applying the six month period of § 10(b) by analogy); United Brotherhood of Carpenters and Joiners v. FMC Corp., 724 F.2d 815 (9th Cir.1984) (suit to vacate arbitration, applying 20 day state statute); International Union of Electrical, Radio and Machine Workers v. Ingram Mfg. Co., 715 F.2d 886 (5th Cir.1983) en banc denied 710 F.2d 677 (suit to enforce arbitration, applying four year state “catch — all” statute); Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983) (suit to confirm arbitration, applying" }, { "docid": "190134", "title": "", "text": "Union refusing to arbitrate the dispute because the time in which to request arbitration had expired. King was not informed that NY-TEL had rejected the demand for arbitration until October 6, 1983, when she learned of Johnson’s August 25th letter to the Union. King commenced the instant action on February 24, 1984, alleging wrongful discharge by NYTEL under section 301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185 (1982), and breach of the duty of fair representation by the Union in advancing her grievances to NYTEL. The district court granted the defendants’ motions for summary judgment in a written Memorandum and Order dated June 7, 1985, holding that the action was barred by the six-month statute of limitations because King knew or reasonably should have known on August 2, 1983 that her claims against NYTEL and the Union had accrued. II. DISCUSSION In a hybrid section 301/fair representation action, the six-month statute of limitations provided by section 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b) (1982), governs the claims against both the employer and the union. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-71, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476 (1982); Assad v. Mount Sinai Hospital, 725 F.2d 837, 838 (2d Cir.1984) (per curiam). The general rule in this circuit is that a cause of action accrues when “the plaintiff could first have successfully maintained a suit based on that cause of action.” Santos v. District Council, 619 F.2d 963, 968-69 (2d Cir.1980) (quoting Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973)). Before commencing suit against an employer for breach of a collective bargaining agreement, an employee ordinarily is required to exhaust any grievance or arbitration remedies provided in that collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965); cf Clayton v. Automobile Workers, 451 U.S. 679, 696, 101 S.Ct. 2088, 2099, 68 L.Ed.2d 538 (1981) (exhaustion not required where further internal union ap peals would be futile). Consequently, we have held that where an employee bringing suit" }, { "docid": "13008699", "title": "", "text": "motion to dismiss the overtime pay claims under the Fair Labor Standards Act which arose prior to January 19, 1980 (later corrected to January 19, 1981) because such claims were barred by the applicable two-year statute of limitations. 29 U.S.C. § 255(a). Levy’s motion for judgment on the pleadings against Flores was subsequently granted since there was no allegation that he was employed by Levy after January 18, 1981. A final judgment order was entered pursuant to Rule 54(b), and this appeal followed. Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, permits a union employee to sue his employer for the violation of collective bargaining agreements. However, where the union and the employer have agreed to submit disputes to a grievance-arbitration process, the employee must first show that the union has breached its duty of fair representation. See Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The cause of action against the union is implied under the National Labor Relations Act. 29 U.S.C. §§ 151 et seq. To prevail against either the employer or the union, therefore, the employee must show that the employer’s action was contrary to the collective bargaining agreement and that the union breached its duty. Such an action is typically labeled a hybrid section 301/ fair representation claim. DelCostello v. Teamsters, 462 U.S. 151, 161-65, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983). In the absence of an express federal statute of limitations governing these actions, the appropriate limitations period had been the subject of considerable dispute until the Supreme Court’s decision in DelCostello. See e.g., Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1314 (7th Cir.1984); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 302 n. 4 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). The issue addressed in DelCostello concerned what statute of limitations should apply in “a suit by an employee or employees against an employer and a union, alleging that the" }, { "docid": "18752555", "title": "", "text": "was not time-barred. Two issues are presented in our examination of the statute of limitations question. First, the parties dispute whether state or federal law provides the substantive limitations period for Hester’s claims. Second, we must decide when the applicable limitations period began to run. A In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court held that the six-month limitations period in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), applies to “hybrid” section 301 /fair representation claims. The court found that section 10(b) provides a “closer analogy” to the federal cause of action than available state statutes, and that federal labor policies are better served by the six-month limitations rule. In subsequent cases, we have considered whether the principles enunciated in Del-Costello apply outside of the context of “hybrid” section 301/fair representation claims. In Erkins v. United Steelworkers, 723 F.2d 837 (11th Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984), we applied the section 10(b) six-month limitations rule where the employee claimed only that his union had breached its duty of fair representation. The plaintiff made no corresponding section 301 claim against the employer. Reasoning by analogy to DelCostello, the court concluded that: The application of § 10(b) is even more appropriate here than in DelCostello. In DelCostello the presence of the claim for breach of collective bargaining agreement, which alone would have been governed by a state statute of limitations for suit on a contract, counseled, against adoption of the § 10(b) limitations period. The present action, involving only a fair representation claim, which the court in DelCostello held analogous to an unfair labor practice both in the right asserted and considerations involved, contains no purely contractual element militating against application of § 10(b)’s six-month period. Id. at 839. This court next considered the applicability of DelCostello to claims against a union under the LMRDA, 29 U.S.C. § 401, et seq., in Davis v. UAW, 765 F.2d 1510 (11th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1284, 89" }, { "docid": "233331", "title": "", "text": "to the choice of a limitations period; section 10(b) reflected a “proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective-bargaining system.” Id. at ---, 103 S.Ct. at 2294 (quoting Mitchell, 451 U.S. at 70, 101 S.Ct. at 1567 (Stewart, J., concurring)). In light of DelCostello, both Abernathy and the Postal Service agree that a federal statute of limitations should apply, but disagree as to which one. The Postal Service argues that because Abernathy has not alleged that the union breached the duty of fair representation, his suit should be analogized to commercial arbitration award challenges and hence the ninety-day federal limitations period under 9 U.S.C. § 12 should apply. Abernathy contends that the six-month statute of limitations under section 10(b) should apply here because the Supreme Court in DelCostello did not distinguish a “hybrid” claim against both union and employer from a “straightforward” claim against an employer only. He also contends that because collective bargaining agreements are excluded from coverage by 9 U.S.C. § 1, the federal arbitration statute of limitations cannot be applied. The Supreme Court’s holding and analysis in DelCostello compel us to conclude that the six-month statute of limitations under section 10(b) should also be applied to Abernathy’s action. The postal workers’ collective bargaining agreement, which provides that arbitration shall be final and binding, precludes an employee’s challenge to an arbitration award, absent a claim of inadequate union representation. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Smith v. Daws, 614 F.2d 1069 (5th Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 567, 66 L.Ed.2d 469 (1980). Thus, while Abernathy has sued only the Postal Service and not the union, clearly he could challenge the arbitration award only if he were to show that the union breached its duty of fair representation. As the Court in Del-Costello recognized, “[t]he employee may, if he chooses, sue one defendant and not the other; but the case he must prove" }, { "docid": "18599009", "title": "", "text": "S.Ct. at 1724 n. 14. The hybrid section 301/fair representation claim, like the section 1981 claim in Johnson, is independent of and separate from the Title VII claim. A Title VII action is directed at a company’s or a union’s discriminatory conduct, while the section 301/fair representation claim alleges the company’s breach of the collective bargaining agreement and the union’s failure to protect the plaintiff’s rights under that agreement. See Waller v. International Harvester Co., 574 F.Supp. 166, 169 (N.D.Ill.1983) (applying Johnson analysis, holding that filing Title VII claim with the EEOC did not toll the statute of limitations on plaintiff’s fair representation claim because the Title VII action was independent of the fair representation claim). The Supreme Court in Alexander also expressly recognized that contractual rights under a collective bargaining agreement and Title VII rights “have legally independent origins and are equally available to the employee.” Alexander, 415 U.S. at 52, 94 S.Ct. at 1022. See also International Union of Electrical Workers Local 790 v. Robbins & Meyers, Inc., 429 U.S. 229, 236, 97 S.Ct. 441, 446, 50 L.Ed.2d 427 (1976) (pending grievance or arbitration procedures under the collective bargaining agreement did not toll the statute of limitations for filing a claim with the EEOC, stressing that the Supreme Court had previously reaffirmed the independence of Title VII remedies from other preexisting remedies available to an aggrieved employee). The precedents of Johnson, Alexander, and International Union of Electrical Workers Local 790 persuade us that the hybrid section 301/fair representation claim, based in part on rights under the collective bargaining agreement, is independent of a claim under Title VII, and thus the time for filing a section 301/fair representation claim is not tolled by pursuing a Title VII claim with the EEOC. There are also policy considerations that weigh against tolling the statute of limitations on the section 301/fair representation cause of action until Title VII procedures are completed by the EEOC. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983), the Supreme Court ruled that the statute of limitations" }, { "docid": "13008700", "title": "", "text": "the union is implied under the National Labor Relations Act. 29 U.S.C. §§ 151 et seq. To prevail against either the employer or the union, therefore, the employee must show that the employer’s action was contrary to the collective bargaining agreement and that the union breached its duty. Such an action is typically labeled a hybrid section 301/ fair representation claim. DelCostello v. Teamsters, 462 U.S. 151, 161-65, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983). In the absence of an express federal statute of limitations governing these actions, the appropriate limitations period had been the subject of considerable dispute until the Supreme Court’s decision in DelCostello. See e.g., Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1314 (7th Cir.1984); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 302 n. 4 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). The issue addressed in DelCostello concerned what statute of limitations should apply in “a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings.” DelCostello, 103 S.Ct. at 2285. The Supreme Court held that the six-month period in section 10(b) of the NLRA should apply to both the union and the employer. Id. at 2287. Flores contends on appeal that his claims are basically for breach of contract and should therefore be governed by Illinois’ ten-year statute of limitations for written contracts. ILL.REV.STAT. ch. 110, § 13-206. Flores argues that DelCostello does not establish a blanket six-month limitations period for all hybrid actions. Rather, the argument proceeds, DelCostello should be limited to those hybrid cases arising out of a “grievance-and-arbitration proceeding.” This case does not so arise and should be considered a “basic” breach of contract action, the argument concludes, because Flores and the other employees-plaintiffs purportedly had no adequate, meaningful, and effective internal union remedies available because the union unlawfully failed to act on their behalf. Neither the authority cited by" }, { "docid": "16705515", "title": "", "text": "most appropriate statute of limitations was the six-year time bar of 42 Pa. Cons.Stat.Ann. § 5527 (Purdon 1982), governing actions for the enforcement of contracts. Thereafter, the Federation moved for summary judgment. On October 13, 1983, the district court granted that motion, and ordered Westinghouse to submit the Armstrong grievance to arbitration. This appeal followed. III. The Appropriate Statute of Limitations When the district court denied Westinghouse’s motion to dismiss on statute of limitations grounds it was without the benefit of the Supreme Court’s subsequent decision in DelCostello v. Int’l. Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). That important decision requires that we consider whether the rule of United Auto Workers v. Hoosier Cardinal Corp., supra, which referred actions under section 301 of the Labor Management Relations Act to state statute of limitations laws, retains vitality. DelCostello involved a suit by union members against their employers for breach of collective bargaining agreements, and against their collective bargaining representatives for breach of the duty of fair representation. Relying on United Parcel Service v. Mitchell, Inc., supra, lower courts had applied the relatively short state law statutes of limitations governing actions to vacate arbitration awards. The Supreme Court reversed, holding that the six-month statute of limitations in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) which establishes a six-month period for making charges of unfair labor practices to the NLRB, was the appropriate reference. The DelCostello court rejected the statutes of limitation for vacation of arbitration awards as far too short, since an employee pursuing the kind of hybrid section 301 duty of fair representation claim there presented would ordinarily be without the assistance of an expert advising him of the time within which a suit to compel arbitration should be brought. 462 U.S. at —, 103 S.Ct. at 2291. Moreover, the Court rejected Justice Stevens’ suggestion that state-law statutes of limitations for legal malpractice should be used as the closest analogy to a duty of fair representation claim. Id. at —, 103 S.Ct. at 2292. Referring to its recent decision in" }, { "docid": "233327", "title": "", "text": "the other case, the Second Circuit had decided that New York’s ninety-day arbitration statute of limitations applied to the claim against the employer, while that state’s three-year statute of limitations for legal malpractice actions applied to the claim against the union. The Supreme Court consolidated the cases to consider whether the six-month limitations period of section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1982), should apply instead. In a thorough analysis of its earlier decisions, particularly Mitchell and Hoosier Cardinal, the Supreme Court decided that this federal statute of limitations should apply, and that it should apply to both types of claims. The Court characterized the two causes of actions as follows: The suit against the employer rests on § 301, since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. “Yet the two claims are inextricably interdependent. ‘To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.’ ” DelCostello, 462 U.S. at ---, 103 S.Ct. at 2290 (quoting Mitchell, 451 U.S. at 66-67, 101 S.Ct. at 1565-1566 (Stewart, J., concurring)). Thus, the suit was a “hybrid § 301/fair representation claim” rather than a straightforward section 301 breach of contract suit like that involved in Hoosier Cardinal. The Court concluded that no close analogy existed in state law for this type of hybrid claim. It also concluded that the analogy drawn in Mitchell, i.e., between an employee’s challenge to a labor arbitration award and a commercial arbitration challenge, was flawed. A relatively short limitations period would be appropriate in the commercial arbitration context, the Court reasoned, as any challenge would rarely raise any new issues, and as participants in the process generally have at least adequate experience or have counsel. The same limitations period, though, would typically be" }, { "docid": "5730087", "title": "", "text": "HAYNSWORTH, Senior Circuit Judge: Plaintiffs, eleven former employees of Consolidation Coal Company, were discharged for allegedly instigating a wildcat strike. Each plaintiff took his discharge to arbitration, where the dismissals were upheld. In July 1981, approximately sixteen months after the discharges and thirteen months after the last of the arbitration decisions upholding the discharges, the plaintiffs commenced this action in a state court against the employer and the union. They asserted Vaca-Hines hybrid claims, charging the employer with a breach of the collective bargaining agreement and the union with failure to discharge its duty of fair representation in the grievance and arbitration proceedings. The employer removed the case to the United States District Court for the Northern District of West Virginia where the parties commenced extensive discovery and pretrial proceedings, culminating in cross motions for summary judgment. There was no suggestion that the commencement of the proceedings were untimely until July 11, 1983, after the decision of the Supreme Court of the United States in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In DelCostello, the Supreme Court held for the first time that such hybrid § 301/DFR claims are subject to the six months period of limitations in § 10(b) of the National Labor Relations Act which governs the filing of charges of unfair labor practices with the National Labor Relations Board. Noting that this court, in Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983), had held that DelCostello was to be applied retroactively, the district court dismissed this action as having been barred by the six months limitation period. Because the circumstances of this case are quite different from those presented in Murray and because, with respect to these West Virginia plaintiffs, DelCostello represented an abrupt change from what appeared to have been settled law, we think DelCostello was improperly given retroactive effect in this case. I. Since there was no federal statute of limitations directly applicable to actions against an employer under § 301(a) of the Labor Management Relations Act, the Supreme Court held in United Auto Workers v." }, { "docid": "10459433", "title": "", "text": "of fair representation requires the union to represent employees in its bargaining unit “honestly and in good faith and without invidious discrimination or arbitrary conduct.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 564, 570, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). A union breaches its duty when its “conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. at 916. The Supreme Court, in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), held that the six-month limitations period set forth in § 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b), is the appropriate statute of limitations for such breach of duty claims. Section 10(b) sets out the statute of limitations for bringing unfair labor practice claims before the National Labor Relations Board. 29 U.S.C. § 160(b). The DelCostello Court noted the “family resemblance” between an unfair labor practice charge and a charge of breach of duty of fair representation brought by an employee against a union. 462 U.S. at 170, 103 S.Ct. at 2293-94. Plaintiff argues that DelCostello is not controlling under the facts of this case because DelCostello involved a “hybrid” suit against both the employer and the union. In such a hybrid suit, an employee may bring an action against the employer for breach of the collective bargaining agreement and against the union for violating its duty of fair representation. Plaintiff contends that because he has made no claim against the employer for breach of the collective bargaining agreement, the six-month statute of limitations does not apply, and the court should adopt the three year statute of limitations from Kansas state law, as found in K.S.A. 60-512. While DelCostello was a hybrid suit, the six-month statute of limitations has also been found applicable to suits brought solely against the union for breach of its duty of fair representation. See Erkins v. United Steelworkers, 723 F.2d 837 (11th Cir.) (applying six-month limitations period to breach of duty of fair representation claim not" }, { "docid": "9434199", "title": "", "text": "that his wrongful discharge claim is preempted by the LMRA, but argues (1) that his claim is not a “hybrid” claim, and therefore the six month statute of limitations does not apply, and (2) even if his claim is a “hybrid” claim, the complaint was timely filed. Ordinarily, an employee who brings a claim, such as plaintiff’s wrongful discharge claim, against an employer for breach of a collective bargaining agreement is first required to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281, 2289, 76 L.Ed.2d 476 (1983). However, an employee is not required to exhaust his remedies under the grievance procedures if the union breaches its duty of fair representation in connection with the grievance process (as, for example, where the union fails to process the employee’s claim). Id. at 164, 103 S.Ct. at 2290. In such a case, the employee may bring a so-called “hybrid” action against both the employer, for breach of the collective bargaining agreement, and the union, for breach of the duty of fair representation. Id. For such a “hybrid” claim, the Supreme Court has held, the applicable statute of limitations is six months, as provided under § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Id. at 169, 103 S.Ct. at 2293. Plaintiff argues, however, that his wrongful discharge claim is not a “hybrid” claim because he does not actually assert a claim for breach of duty of fair representation against the union. This argument is without merit. Although plaintiff does not assert a claim for breach of duty of fair representation against the union, the allegations in his complaint are precisely that the union breached its duty to plaintiff by failing to advise him of his rights under the collective bargaining agreement. See Complaint, Count I, ¶ 20. As the Supreme Court has held, the two claims in a “hybrid” action are “inextricably interdependent.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2291. Without a claim against the union, the employee’s claim against the" } ]

[ { "docid": "22656576", "title": "", "text": "Resolution issued by the Adult Authority, including without limitation any file maintained on any Resolution or Policy Statement and all such documents executed or issued subsequent to that date.” “22. All documents, however formal or informal, issued during the past calendar year, which concern the Adult Authority’s adoption of new policies, procedures, criteria, and the like, to be followed by members, hearing representatives, officials and employees . . . .” App. 52-56. Title 28 U. S. C. § 1651 (a) provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” While it has not yet come to trial, there have been additional developments in the underlying case during the pendency of the instant action before this Court. Since none of these developments are relevant to the resolution of the issue before us, we simply summarize them. Subsequent to the filing of the petition for certiorari in the instant case, plaintiffs filed a second amended complaint in the underlying action in which they added allegations which led petitioners in turn to request the appointment of a three-judge District Court to hear the case. See 28 U. S. C. § 2281. The single judge then hearing the case certified it to the Chief Judge of the Court of Appeals for the Ninth Circuit as one appearing to require the convening of a three-judge court. The Chief Judge appointed the three members of the court on October 28, 1975, several days before oral argument was held in the instant case. But soon thereafter plaintiffs amended their complaint once again. This subsequent amendment made the convening of a three-judge court appear unnecessary and the three-judge court dissolved itself, remanding the entire ease to the single judge originally assigned to the case. Thus, as the matter now stands, the underlying action is being heard by a single-judge District Court. Subsequent to our grant of certiorari but before oral argument, plaintiffs represented to this Court that they “no longer seek any of" } ]

[ { "docid": "21742852", "title": "", "text": "litigant caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and 5. Whether other sanctions would be adequate to protect the courts and the other parties. Ultimately, the question the court must answer is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties. Ortman, 906 F.Supp. at 421-22. . Pursuant to the All Writs Act, federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions....” 28 U.S.C. § 1651(a). . Although the district court's April 5, 2000 order only enjoined the Tropfs from filing any civil lawsuit in state court or state administrative proceedings without posting a $50,000 bond or cash, under Federal Rule of Civil Procedure 65(d), injunctions are “binding ... upon the parties to the action, their officers, agents, servants, employees, and attorneys. ...” . There are three statutory exceptions to the Anti Injunction Act: a federal court may issue an injunction against a pending state court proceeding \"as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283; see also Mitchum v. Foster, 407 U.S. 225, 233-38, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (discussing the exceptions). But none apply in this case. First, there is no statute that particularly authorizes the federal courts to issue injunctions in the circumstances of this case. Second, the injunction could not have been issued in aid of the district court's jurisdiction because the district court lacked jurisdiction over the Tropfs' claims. Finally, the last exception, commonly referred to as the “relitigation exception,\" “was designed to permit a federal court to prevent litigation of an issue that previously was presented to and decided by the federal court. It is founded in the well recognized concepts of res judicata and collateral estoppel.” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988); see also Hatcher v. Avis Rent-A-Car Sys., Inc., 152 F.3d" }, { "docid": "23175362", "title": "", "text": "injunction’s scope be limited to issues involving the Human Awareness Universal Life Church.” The Warden has accordingly proposed that we enter the following injunction: Clovis Carl Green, Jr. may not file any civil action in the district court of this Circuit or any petition or appeal with this Court without first obtaining leave of the appropriate Court. In seeking leave of Court, Mr. Green must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon failure to certify or upon false certification, petitioner may be found in contempt of court and punished accordingly. In response, Green’s court-appointed counsel submitted memoranda arguing that (1) this Court lacks subject matter jurisdiction to issue an original injunction; (2) an appellate court may not make the factual findings necessary to support the proposed injunction; and (3) the proposed injunction denies Green his constitutionally protected right of access to the courts. II. The first issue we shall address is Green’s argument that this Court does not have the authority to issue the requested injunction as an original matter. Green argues that entry of the requested injunction, without having the imprimatur of a district court upon it, would not be consistent with this Court’s appellate function. The Government responds that this Court has the authority to issue the injunction pursuant to the All Writs Act, 28 U.S.C. § 1651(a), as an action in furtherance of our supervisory authority over the courts of this circuit. Section 1651(a) of Title 28, otherwise known as the All Writs Act, states that: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C. § 1651(a). As this Court has recently noted, the All Writs Act confers a broad grant of authority to federal courts. See United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.1982). The purpose behind the Act is to assure the various federal courts that they may have" }, { "docid": "13629927", "title": "", "text": "Firestone. Bridgestone/Firestone, 333 F.3d at 766. The plaintiffs responded by seeking class certification in several state court actions. This prompted Ford and Firestone to request an injunction under the Anti-Injunction Act’s relitigation exception. Id. at 765. The district court refused their request, and the Seventh Circuit reversed. Id. Although the court of appeals felt it necessary to protect its prior ruling by forestalling relitigation of an issue it had already decided, it ordered the district court to issue the injunction principally to prevent the proliferation of nationwide class actions identical to the one it rejected. Absent an injunction, the court anticipated that lawyers (including those appearing before it) would be emboldened to “fil[e] in as many courts as necessary until a nationwide class comes into being and persists.” Id. Such relitigation would therefore “turn even an unlikely outcome into reality,” making “it sensible to handle the preclusive issue once and for all in the original [in this instance, federal] case.” Id. It is reasonable to infer from the district court’s reliance on Bridgestone/Firestone that the court suspected Westgate, the Dealers, and their counsel of employing the litigation strategy decried by the Seventh Circuit, and that it wanted to stop them by giving finality to its class certification denial. The district court’s suspicion may or may not have been warranted, but the question remains whether Bridge-stone/Firestone supplied an adequate justification for enjoining the Dealers from participating in the Westgate Class. We conclude that it did not. The All Writs Act is the only-source from which the district court could have derived the power to enjoin the Dealers. Under the Act, “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. The Act “is a codification of the federal courts’ traditional, inherent power to protect the jurisdiction they already have, derived from some other source.” Klay, 376 F.3d at 1099. It allows federal courts “to protect their respective jurisdictions,” and “to safeguard not only ongoing" }, { "docid": "19157554", "title": "", "text": "1651(a), because removal of this action is necessary to aid this court’s jurisdiction in the Lipscomb class action litigation, currently pending before this court as cause number 1:92CV20-D-D. For the reasons set forth below, the court shall remand this cause to state court for ultimate resolution. C. Discussion The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (2001). While the All Writs Act authorizes federal courts to issue commands “as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained,” the Fifth Circuit has held that the Act cannot serve as an independent basis of federal jurisdiction. Texas v. Real Parties in Interest, 259 F.3d 387, 392 (5th Cir.2001); see In re McBryde, 117 F.3d 208, 220 (5th Cir.1997) (holding that “section 1651(a) is not an independent grant of jurisdiction”). Accordingly, the court holds that the Plaintiffs’ motion to remand should be granted. In Texas, the Fifth Circuit held that the All Writs Act could not be used to remove a case where no independent basis for federal jurisdiction existed. Texas, 259 F.3d at 388. In that case, after the plaintiff State of Texas and defendant members of the tobacco industry reached a settlement agreement which was later incorporated into a final judgment entered by the district court, a dispute arose regarding the amount of attorney’s fees to be awarded. Id. Investigating possible fraud and breach of fiduciary duty, Texas initiated a pre-litigation discovery proceeding in state court. Id. The defendants removed the proceeding to federal court, arguing that the All Writs Act applied “to protect the integrity of the court’s judgment from a collateral assault.” Id. Pointing to the lack of diversity or any federal question, Texas moved to remand. Texas, 259 F.3d at 388. After the lower court denied its motion to remand, Texas appealed to the Fifth Circuit. Id. In reversing the district" }, { "docid": "23529418", "title": "", "text": "matter jurisdiction in the present case. Appellants consistently have contended that the Saunders cases should not have been removed to federal court under diversity jurisdiction. Appellants renew their objection to diversity jurisdiction in the present appeal because their motion to remand was rendered moot by the district court’s injunction. We review federal subject matter jurisdiction de novo. See V S Ltd. P’ship v. HUD, 235 F.3d 1109, 1112 (8th Cir.2000). The district court based its jurisdiction to issue an injunction on the powers granted to it by the All Writs Act, finding that “it clearly has jurisdiction to issue an injunction to protect an issue necessarily decided in a prior case.” Canady II, slip op. at 4. We agree. The current action on appeal was initiated by appellee Liberty Mutual, a defendant in Canady I, who sought an injunction against any federal or state court proceedings in conflict with the ruling in Canady I pursuant to the All Writs Act. 28 U.S.C. § 1651 (enabling federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions”). The judgment protected by the injunction is the judgment in Canady I, which was properly issued in federal court, as it is undisputed that appellants properly filed their original class action complaint in federal court. As long as the original lawsuit was properly brought in federal court, the federal court retains subject matter jurisdiction to remove any subsequent state law action to federal court for purposes of applying the All Writs Act. See Xiong v. Minnesota, 195 F.3d 424, 426-27 (8th Cir.1999) (Xiong) (holding that removal to federal court was proper for claims asserted under All Writs Act); see also NAACP v. Metropolitan Council, 144 F.3d 1168, 1171 (8th Cir.1998) (NAACP II) (concluding that federal court properly exercised removal jurisdiction over state law claims pursuant to the All Writs Act). Consequently, we hold that the district court properly asserted jurisdiction under the All Writs Act over the present dispute in order to protect its pri- or judgment. B. Applicability of the Relitigation Exception to the Anti-Injunction Act The Anti-Injunction Act" }, { "docid": "1770205", "title": "", "text": "injunctions to protect the integrity of their pre-trial rulings, the ruling which the instant injunction seeks to protect lacks sufficient' factual underpinnings. Because the district court based the injunction on inadequate facts, which necessarily forces us to speculate because of an insufficient record before .us on review, we are of the opinion that granting the injunction was an abuse of discretion, and order that the injunction be vacated. Should either of the parties wish to pursue the possibility of a more limited form of injunctive relief, consistent with this opinion, they may file an appropriate motion with the district court. VACATED. . Exactly what has never been revealed. .Under the inherent powers doctrine, courts have the historic authority to grant such equitable relief as is necessary to protect the integrity of their judgments and the proceedings before them. This includes the power to set aside fraudulently begotten judgments, as well as the power to conduct independent investigations in order to determine whether the court has been the victim of fraud or deceit. Chambers v. NASCO, Inc., 501 U.S. 32, 43-44, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991). . It is worth noting, however, that the attorneys who represent Mahoney also continue to represent other parties whose Prozac suits remain part of the multidistrict litigation. . The All Writs Act provides that \"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. . By the time defendants sought the injunction, Judge Dillin had remanded most of the consolidated cases back to their respective district courts. The mere fact of that remand, however, did not deprive him of jurisdiction to issue the injunction. It would vitiate.much of the putpose of consolidating litigation if, after remand, parties could simply re-visit the transferee court’s pre-trial rulings, and force the common defendant to deal piecemeal with once-collective matters. Accordingly, just as courts retain jurisdiction to protect the integrity of their judgments after the judgment has issued, Chambers," }, { "docid": "2257059", "title": "", "text": "proceedings, however, if “necessary in aid of its jurisdiction.” The All Writs Act, consistent with the Anti-Injunction Act, provides that “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. A federal court presiding over an inter-pleader action may stay pending state court proceedings involving the same inter-pled fund under the “necessary in aid of its jurisdiction” exception to the Anti-Injunction Act. As Judge Skelly Wright noted in Pan American Fire & Casualty Co. v. Revere, 188 F.Supp. 474 (E.D.La.1960): Usually interpleader will not be really effective unless all claimants are brought before the same court in one proceeding and restricted to that single forum in the assertion of their claims. To accomplish that end, * * * it is of course essential that the interpleader court enjoin the institution or prosecution of other suits on the same subject matter elsewhere. Id. at 483. Judge Wright’s reasoning has garnered the support of commentators. See, e.g., 3A Moore’s Federal Practice, ¶ 22.04(3) (1987) (All Writs Act should be construed to permit injunction of state court proceedings in Rule 22 interpleader actions). If the district court finds that effective adjudication of General Railway’s interpleader claim cannot proceed unless the Superintendent is prevented from collecting the Illinois state court judgment, General Railway may obtain the injunction it seeks, provided that Rule 65 requirements are met. IV. At least one basis for exercising federal jurisdiction over this interpleader action exists, and the foregoing supplies guidance for future proceedings at the district court level. One further issue deserves comment, however. Even if the district court has jurisdiction over the interpleader action, it may be appropriate in the circumstances presented for the district court to abstain from adjudicating the issues presented. After this appeal was filed, the district court considered and denied a motion for summary judgment filed by the Superintendent. General Railway Signal Co. v. Corcoran,. 748 F.Supp. 639 (N.D.Ill.1990) (order denying Superintendent’s motion to dismiss and for" }, { "docid": "16621599", "title": "", "text": "occurrences set forth in the Complaints in the Federal Actions.” In a final appellate issue, the trustee now complains that the district court erred in later enjoining him from “commencing or prosecuting any action in any court other than [the district court] against [the defendant law firms and lawyers] in any way relating to any of the facts, transactions or occurrences set forth in or underlying the Trustee’s Complaints filed in the Federal Actions.” We review a grant of a permanent injunction only for an abuse of discretion. Wayne v. Village ofSebring, 36 F.3d 517, 531 (6th Cir.1994), cert. denied, 514 U.S. 1127, 115 S.Ct. 2000, 131 L.Ed.2d 1001 (1995). An abuse of discretion is defined as a definite and firm conviction that the district court committed a clear error of judgment. Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir.1996). No such error occurred in this instance. The district court originally issued its injunction pursuant to the All Writs Act, 28 U.S.C. § 1651, which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The trustee contends, however, that the injunction should not have issued because the defendants could not establish irreparable harm or a strong likelihood of success on the merits, because the district court order at issue was not final and non-appealable, and because any preclusion defense should be raised in the state court in the first instance. Ordinarily, the Anti-Injunction Act, 28 U.S.C. § 2288, forbids a federal court from enjoining proceedings in state courts. That statutory provision nevertheless contains its own exception for situations “expressly authorized by Act of Congress, or where necessary in aid of [the district court’s] jurisdiction, or to protect or effectuate its judgments.” Id. (emphasis added). Here, the district court ruled that the bankruptcy trustee could not maintain an action against the defendant law firms and lawyers. Faced with an end to his federal litigation, the trustee sought to substitute for “John Doe defendants”" }, { "docid": "4302817", "title": "", "text": "and nullify [its] findings as to the adequacy of [class counsel’s] representation of the plaintiff class,” as reflected in the Settlement Order and the Rule 60(b) Order. Id. This appeal followed. DISCUSSION The sole issue on appeal is whether the District Court’s injunction against the state court action was proper under the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283. The All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Id. § 1651(a). “This grant of authority is limited by the Anti-Injunction Act, 28 U.S.C. § 2283, which bars a federal court from enjoining a proceeding in state court unless that action is ‘expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.’ ” Ret. Sys. of Ala. v. J.P. Morgan Chase & Co., 386 F.3d 419, 425 (2d Cir.2004) (quoting 28 U.S.C. § 2283). In interpreting the Anti-Injunction Act, the Supreme Court has directed that “[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy.” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 297, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). In this case, the District Court held that a permanent injunction of the state court action was “necessary in aid of its jurisdiction” (the “in aid of jurisdiction” exception) and was needed to “protect or effectuate its judgments” (the “relitigation” exception). 28 U.S.C. § 2283. We consider each of these holdings in turn. In doing so, we review the District Court’s issuance of an injunction for abuse of discretion. Ret. Sys. of Ala., 386 F.3d at 425. We review the District Court’s factual findings for clear error and its interpretation of the All Writs Act and the Anti-Injunction Act de novo. Id.; see also In re Sims," }, { "docid": "3099365", "title": "", "text": "This Court disagrees. Section 78u-4(b)(3)(D) expressly provides that a District Court can stay discovery in “any private action ” pending in a state court, rather than merely in a “covered class action.” Therefore, excluding a derivative action from the definition of a “covered class action” does not render § 78u-4(b)(3)(D) inapplicable. Derivative actions pending in state court may be stayed pursuant to the provisions of § 78u-4(b)(3)(D). Additionally, during oral argument, the Plaintiffs argued that this Court is precluded from staying discovery in the state court actions by the Sixth Circuit’s decision in Tropf v. Fidelity National Title Ins. Co., 289 F.3d 929 (6th Cir.2002). Therein, the plaintiffs sued the defendants over a previous mortgage foreclosure action that had taken place in state court. The District Court dismissed the plaintiffs’ claims for want of jurisdiction, under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The District Court also imposed sanctions and enjoined the plaintiffs from filing additional lawsuits arising out of the same circumstances, in either federal or state court. Upon appeal, the Sixth Circuit reversed the portion of the injunction which prevented the plaintiffs from initiating future state court actions. The Sixth Circuit noted that the Anti-Injunction Act, 28 U.S.C. § 2283, did not pre- elude the imposition of such an injunction, since that statute “did not preclude injunctions against the institution of state court proceedings.” Id. at 941. However, the only basis for enjoining future lawsuits in state court was the All Writs Act, 28 U.S.C. § 1651(a), which authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions.” The Sixth Circuit concluded that this statute did not support the imposition of the injunction, since the District Court had concluded that it was without jurisdiction over the litigation. Id. at 943. Therefore, the District Court did not have any jurisdiction to aid by means of the injunction against future state court actions." }, { "docid": "19157553", "title": "", "text": "at 514. Thereafter, on December 3, 2001, the State filed four separate lawsuits in the Chancery Court of Lowndes County, Mississippi, seeking to confirm the State’s title to the four subject parcels of sixteenth-section property and to remove any clouds on the State’s title. The Defendants removed the four cases to this court on January 2, 2002, asserting the All Writs Act, 28 U.S.C. § 1651(a), as the jurisdictional basis for removal. On January 28, 2002, the Plaintiffs motioned the court to remand the four cases to state court.. B. Standard for Remand A defendant may generally remove a civil action from state court to federal court provided that the federal court has original jurisdiction over the plaintiffs claims. See 28 U.S.C. § 1441(a) (2001). After the case’s removal, however, a federal district court must remand the case to state court if it finds that it lacks jurisdiction. See 28 U.S.C. § 1447 (2001). Here, the Defendants’ Notice of Removal asserts that this case is removable pursuant to the All Writs Act, 28 U.S.C. § 1651(a), because removal of this action is necessary to aid this court’s jurisdiction in the Lipscomb class action litigation, currently pending before this court as cause number 1:92CV20-D-D. For the reasons set forth below, the court shall remand this cause to state court for ultimate resolution. C. Discussion The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (2001). While the All Writs Act authorizes federal courts to issue commands “as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained,” the Fifth Circuit has held that the Act cannot serve as an independent basis of federal jurisdiction. Texas v. Real Parties in Interest, 259 F.3d 387, 392 (5th Cir.2001); see In re McBryde, 117 F.3d 208, 220 (5th Cir.1997) (holding that “section 1651(a) is not an independent grant of jurisdiction”). Accordingly," }, { "docid": "1770206", "title": "", "text": "Inc., 501 U.S. 32, 43-44, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991). . It is worth noting, however, that the attorneys who represent Mahoney also continue to represent other parties whose Prozac suits remain part of the multidistrict litigation. . The All Writs Act provides that \"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. . By the time defendants sought the injunction, Judge Dillin had remanded most of the consolidated cases back to their respective district courts. The mere fact of that remand, however, did not deprive him of jurisdiction to issue the injunction. It would vitiate.much of the putpose of consolidating litigation if, after remand, parties could simply re-visit the transferee court’s pre-trial rulings, and force the common defendant to deal piecemeal with once-collective matters. Accordingly, just as courts retain jurisdiction to protect the integrity of their judgments after the judgment has issued, Chambers, 501 U.S. at 43, 111 S.Ct. at 2132, so we believe that a transferee court's statutory power to control mul-tidistrict litigation necessarily includes the equitable power, after remand, to interpret the scope ■and protect the integrity of orders it issued while in charge of the consolidated lawsuits. . The mere undesirability of duplicative rulings does not, of course, trump the Anti-Injunction Act and empower courts conducting multidistrict litigation to enjoin independent prior state court proceedings — like, for example, the Fentress case — unless the court has otherwise obtained jurisdiction. . New York Telephone is not to the contrary. That case establishes that courts have the authority to enjoin non-parties who \"are in a position to frustrate the implementation of a court order,” but only “under appropriate circumstances.” 434 U.S. at 174, 98 S.Ct. at 373. The circumstances in the case at bar are simply not appropriate for such a sweeping injunction. Unlike the defendants, our concern is not that the Fen-tress agreement remain sacrosanct but, as stated above, that litigants not engage in forum-shopping" }, { "docid": "8175476", "title": "", "text": "action to all putative members of the Carlough plaintiff class. B. The district court grounded its authority for granting the preliminary injunction in the Anti-Injunction Act, 28 U.S.C. § 2283 (1970), and the Ail-Writs Act, 28 U.S.C. § 1651 (1988). The Anti-Injunction Act provides that: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. The All-Writs Act in part provides that: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. In granting the injunction, the district court relied on the parallel “necessary in aid of jurisdiction” language of the two Acts and cited several cases in which federal courts have enjoined or upheld injunctions against absent class members who have initiated a duplicative state court suit, derived from the same matters pending in the federal district court. See, e.g., In re Asbestos School Litigation, 1991 WL 61156, 1991 U.S.Dist. LEXIS 5142 (E.D.Pa. April 16, 1991) (construing All-Writs Act and Anti-Injunction Act similarly, and holding that stay of state proceeding is “necessary in aid of jurisdiction” when parallel action would seriously impair federal court’s flexibility and authority or opportunity to adjudicate as to the res), aff'd mem., 950 F.2d 723 (3d Cir.1991); In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litigation), 770 F.2d 328 (2d Cir.1985) (injunction proper when multi-de-fendant opt out class action is so far advanced that it is equivalent to a res over which district court requires control, and potential for onslaught of duplicative state proceedings would seriously impair federal court’s flexibility and authority); see also In re Corrugated Container Antitrust Litigation, 659 F.2d 1332 (5th Cir.1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). The district court rejected the Gore plaintiffs’ reliance on our prior holdings in In re Real Estate Title and Settlement Services Antitrust" }, { "docid": "4302816", "title": "", "text": "Andrew L. Barroway (jointly, the “Appellees” or “class counsel”) — moved in the District Court for an order permanently enjoining the Wyly Appellants from prosecuting the state court action. The Appellees argued that the District Court’s holdings at the fairness hearing, its approval of the global settlement, and its dismissal of the Rule 60(b) motion permitted the issuance of an injunction under the All Writs Act, 28 U.S.C. § 1651, barring the state court proceedings against class counsel. On September 29, 2010, the District Court granted the injunction and directed class counsel to submit a proposed order. The District Court entered the proposed order on November 3, 2010, holding, inter alia, that “this Court’s determination of Class Counsel’s entitlement to fees necessarily determined the adequacy of their representation of the class members (including Wyly) and collaterally estops claims of attorney malpractice or misconduct in connection with the Settlement.” Barroway v. Computer Assocs., No. 98-cv-4839 (TCP)(ETB) (E.D.N.Y. Nov. 3, 2010), Doc. No. 402. The District Court further held that the state court action “seeks to relitigate and nullify [its] findings as to the adequacy of [class counsel’s] representation of the plaintiff class,” as reflected in the Settlement Order and the Rule 60(b) Order. Id. This appeal followed. DISCUSSION The sole issue on appeal is whether the District Court’s injunction against the state court action was proper under the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283. The All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Id. § 1651(a). “This grant of authority is limited by the Anti-Injunction Act, 28 U.S.C. § 2283, which bars a federal court from enjoining a proceeding in state court unless that action is ‘expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.’ ” Ret. Sys. of Ala. v. J.P. Morgan Chase & Co., 386 F.3d 419, 425 (2d Cir.2004) (quoting 28 U.S.C. §" }, { "docid": "10137722", "title": "", "text": "582, 585 (7th Cir. 1982); see also Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996). C The only remaining question is whether the, district court properly exercised its authority when it agreed that, the Clerk of the Eastern District of Wisconsin was to hold copies of the John Doe records undocketed and under seal pending final disposition of this case. At the-end of this litigation, the district cdurt ordered these copies to be destroyed. Its action is in some tension with the Wisconsin Supreme Court’s file-and-destroy demand in Three Unnamed Petitioners, 875 N.W.2d at 58-61. Without the district court’s limited preservation order, the defendants feared that they would be unable to obtain-.access to the records for purposes of their defense in the present case (if we had reversed the district court). The court recognized the comity and federalism concerns raised by the defendants’ motion, but it accommodated those concerns in three ways: by sealing, by making the records undoeketed, and by ordering them- destroyed at the conclusion of the case. Archer believes this was an inappropriate intrusion into the Wisconsin Supreme Court’s adjudication in Three Unnamed Petitioners, because there is no proof that the state’s high court will deny any future request from the defendants, for access to the documents. Since the state supreme court denied motions to intervene brought by the Prosecutors and the Investigators, we are unable to predict what the court ultimately may decide. We turn therefore to the federal laws on which the defendants rely: the All Writs Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C. § 2283. The All Writs Act allows all courts established by Congress to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The Anti-Injunction Act (AIA) bars a -district court from granting an injunction to stay a proceeding in a state court unless such action is “expressly authorized by Act of. Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C." }, { "docid": "19206667", "title": "", "text": "remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments.” Id. Thus, we consider Hill’s motion for injunc-tive relief anew, but with the clear indication from the Supreme Court in this case that we may deny Hill’s request if the equities demand that result. As with any application for injunc-tive relief, our analysis turns in part on the type of injunction being sought. Hill’s request for a preliminary injunction is not predicated on any independent cause of action; instead, he requests the injunction solely for the purpose of allowing time to pursue his appeal. As such, the injunction sought is not a “traditional” injunction, but instead one grounded in the authority of the federal courts under the All Writs Act, 28 U.S.C. § 1651(a), which states, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099-1100 (11th Cir.2004) (explaining that “[t]he Act does not create any substantive federal jurisdiction” and that the Act “is a codification of the federal courts’ traditional, inherent power to protect the jurisdiction they already have, derived from some other source”). An injunction under the All Writs Act “must simply point to some ongoing proceeding, or some past order or judgment, the integrity of which is being threatened by someone else’s action or behavior.” Id. (noting “a court’s traditional power to protect its jurisdiction”). Such is clearly the case here. Hill has noticed his appeal of the district court’s dismissal of his § 1983 complaint, and we clearly have jurisdiction over that appeal. Were we to grant a preliminary injunction in order to allow time to hear Hill’s appeal, we would be doing so to protect our appellate jurisdiction from the impending act of the State of Florida to execute Hill. We find, however, that the equities do not support Hill’s request. Simply put, Hill was the architect" }, { "docid": "23529417", "title": "", "text": "claims that were already adjudicated and conclusively rejected in this court’s prior ruling in Ca-nady I. Appellants opposed the motion, arguing that the proposed injunction was prohibited by the Anti-Injunction Act, 28 U.S.C. § 2283, and that the injunction was not supported by an equitable showing of irreparable harm. On June 24, 1999, the district court granted the motion and enjoined appellants from prosecuting any action against multiple, unrelated defendants in any court based upon the same allegations as those raised in Canady I. See Canady II, slip op. at 18. As a result, the district court ordered that the state court cases be dismissed with prejudice and denied all pending federal motions as moot. See Saunders v. Allstate Ins. Co., No. 99-0137 (W.D.Mo. June 28, 1999); Saunders v. Farm Bureau Town & Country Ins. Co., No. 99-0139 (W.D.Mo. June 28, 1999) (dismissing state court cases and denying all pending federal motions as moot). This appeal followed. Discussion A. Federal Subject Matter Jurisdiction As a threshold matter, we must examine whether there is federal subject matter jurisdiction in the present case. Appellants consistently have contended that the Saunders cases should not have been removed to federal court under diversity jurisdiction. Appellants renew their objection to diversity jurisdiction in the present appeal because their motion to remand was rendered moot by the district court’s injunction. We review federal subject matter jurisdiction de novo. See V S Ltd. P’ship v. HUD, 235 F.3d 1109, 1112 (8th Cir.2000). The district court based its jurisdiction to issue an injunction on the powers granted to it by the All Writs Act, finding that “it clearly has jurisdiction to issue an injunction to protect an issue necessarily decided in a prior case.” Canady II, slip op. at 4. We agree. The current action on appeal was initiated by appellee Liberty Mutual, a defendant in Canady I, who sought an injunction against any federal or state court proceedings in conflict with the ruling in Canady I pursuant to the All Writs Act. 28 U.S.C. § 1651 (enabling federal courts to “issue all writs necessary or appropriate in" }, { "docid": "6540202", "title": "", "text": "prohibited KPMG-B from releasing the information. Id. at 14-15. Thereafter, KPMG-B instituted an action in the Belgian judicial system seeking to enjoin the class action plaintiffs from “taking any step” toward the diseov-ery requests and to impose substantial penalties on parties pursuing discovery procedures. Id. The class action plaintiffs countered this move by filing a motion in the United States action and obtaining a foreign antisuit injunction against KPMG-B to prevent KPMG-B from pursuing the Belgian injunctive action. Id. On appeal, the First Circuit affirmed the injunction, agreeing with the district court that the character of the foreign action, the public policy of protecting investors against fraud, and the need to protect the court’s jurisdiction all counterbalanced comity concerns under the peculiar circumstances of the case. Id. at 20. The case before us does not fit within the category of cases in which foreign anti-suit injunctions have been considered. We do not believe the rationale of those cases compels an injunction in the present case. First, although the All Writs Act, 28 U.S.C. § 1651(a), authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” the Act does not create an independent source of federal jurisdiction. Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) (quoting 28 U.S.C. § 1651(a) and declaring the All Writs Act does not establish the original jurisdiction to support removal jurisdiction); see Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 333-34 (2d Cir.2006) (rejecting the district court’s assertion that an injunction issued pursuant to the All Writs Act provided the court with subject matter jurisdiction concluding, “[t]o hold otherwise would make mincemeat of the limited grants of jurisdiction bestowed upon us”); Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 413 (2d Cir.2002) (noting the All Writs Act, while not conferring an independent basis of jurisdiction, “ ‘provides a tool courts need in cases over which jurisdiction is conferred by some other source’ ” (quoting United States v. Tablie, 166 F.3d" }, { "docid": "22036750", "title": "", "text": "Congress has sought to protect. 321 U.S. 321, 330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). Suffice to say that no overarching general principles are readily apparent, and we need not determine whether these cases are in conflict, or resolve any potential dispute here. Neither party contends that the injunction in this case was expressly authorized by a particular statute dealing with arbitration. The final type of injunction is an injunction under 28 U.S.C. § 1651(a), the All Writs Act, which states, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act does not create any substantive federal jurisdiction. See Brittingham v. Comm’r, 451 F.2d 315, 317 (5th Cir.1971) (“It is settled that ... the All Writs Act, by itself, creates no jurisdiction in the district courts. It empowers them only to issue writs in aid of jurisdiction previously acquired on some other independent ground.”). Instead, it is a codification of the federal courts’ traditional, inherent power to protect the jurisdiction they already have, derived from some other source. See Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir.1986) (en banc) (“Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions.”). In allowing courts to protect their “respective jurisdictions,” the Act allows them to safeguard not only ongoing proceedings, but potential future proceedings, as well as already-issued orders and judgments. See Wesch v. Folsom, 6 F.3d 1465, 1470 (11th Cir.1993) (“In addition, courts hold that despite its express language referring to ‘aid ... of jurisdiction,’ the All-Writs Act empowers federal courts to issue injunctions to protect or effectuate their judgments.”). A court may grant a writ under this act whenever it is “calculated in [the court’s] sound judgment to achieve the ends of justice entrusted to it,” and not only when it is “ ‘necessary’ in the sense that the court could not otherwise physically discharge its" }, { "docid": "23026364", "title": "", "text": "this action. A. The All Writs Act The Government submitted that this Court has the power to issue extraordinary writs under the All Writs Act. That statute reads as follows: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C. § 1651(a). The broad language of the All Writs Act has been supplemented by case law which outlines the appropriate situations for issuing injunctions that bar parties from litigating suits before other tribunals. In this Circuit, Courts interpreting the scope of this power under the All Writs Act look to that act, and also by analogy to circumstances involving the Anti-Injunction Act, 28 U.S.C. § 2288, which prevents Federal Courts from issuing injunctions barring proceedings in state tribunals except “when necessary in aid of jurisdiction.” In re Baldwin-United Corporation, 770 F.2d 328, 335 (2d Cir.1985). Circumstances where inter-court injunctions under the All Writs Act are appropriate include (1) enjoining state actions when necessary to prevent relitigation of an existing federal judgment; Id., see United States v. New York Telephone, 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977); (2) preventing a state court from interfering with a federal court’s consideration or disposition of a ease so “as to seriously impair the federal court’s flexibility and authority to decide that ease” Baldwin-United, supra, 770 F.2d at 335, quoting Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970); (3) enjoining a state court seeking to entertain an action over the same res; and in an in rem action, when the parallel state action will defeat the already attached jurisdiction of the federal court. Baldwin-United, supra, 770 F.2d at 336; see Kline v. Burke Construction Co., 260 U.S. 226, 230, 43 S.Ct. 79, 81, 67 L.Ed. 226 (1922); Cf. Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 642, 97 S.Ct. 2881, 2893, 53 L.Ed.2d 1009 (1977); (4) enjoining repeated, baseless, vexatious litigation" } ]

[ { "docid": "14550177", "title": "", "text": "Id. As far as we can determine, ours was the first and is the only opinion construing these regulations. We do not think that the government should be found to have acted without substantial justification because it did not foresee how the court of appeals would interpret the regulations. Affirmed. . Subsection (d) of § 2412 was repealed on October 1, 1984, subject to the proviso that it would continue to apply through final disposition of any action commenced before the date of repeal. The complaint in this case was filed on May 16, 1980, and the motion for attorney’s fees was filed in January of 1984. . On August 5, 1985, the Act was extended and amended. For practical purposes, subsection (d) of § 2412 was reenacted and amended. The most significant amendment was the addition of the following to the end of § 2412(d)(1)(B): \"Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.\"" } ]

[ { "docid": "23624686", "title": "", "text": "2412(d) was reenacted in 1985 because Congress previously had repealed the provision. See 28 U.S.C. § 2412 note (“Repeal of Subsection (d),” effective as of Oct. 1, 1984) (1982). In 1985, when reenacting the provision, Congress declared that section 2412(d) “ ‘shall be effective ... as if [it] had not been repealed 5 U.S.C. § 504 note (“Revival of Previously Repealed Provisions”) (Supp.1985) (quoting Act of Aug. 5,1985, Pub.L. 99-80 § 6(a), 99 Stat. 186) (emphasis added). This instruction implies that, when Congress reenacted § 2412(d), it intended to maintain the cap’s 1981 real market value. Our conclusion is in accord with that reached by the Second Circuit in Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 705-07 (2d Cir.1987). After canvassing the legislative history of Congress’ reenactment of the EAJA, that court concluded that the 1985 Congress “intended the measuring point for inflationary increases in the attorney’s fee cap to be October 1, 1981.” Id. at 707. The court explicitly rejected the government’s argument that, when Congress decided in 1985 to leave the $75 cap intact, it intended to “start the cost-of-living ‘meter’ over again, with increases measured from 1985 dollars.” Id. The court stated: Contrary to the implicit suggestion of the secretary, congress made no decision that $75, measured in 1985 dollars, was still an appropriate cap and, in effect, to roll back the increases that courts had regularly given to keep pace with inflation between 1981 and 1985. Rather, congress simply put back in place the statutory scheme that had been allowed to lapse, without giving specific attention to the dollar amount used both as the ceiling on fees and as the base for adjustments for inflation. But the reenacted scheme included the cost-of-living adjustments that had to that point been authorized by the 1981 Act. Id. at 705-06. Accord Sierra Club v. Secretary of the Army, 820 F.2d 513, 520-23 (1st Cir.1987). Like the Second Circuit, we “look to the substance of what congress actually did in 1985, which was to revive a statute and provide in so doing that it should be" }, { "docid": "10081029", "title": "", "text": "MEMORANDUM DECISION AND ORDER J. THOMAS GREENE, District Judge. This matter came before the court on July 22, 1987, pursuant to plaintiff's Motion for Entry of Final Judgment and Award of Attorney’s Fees. The parties submitted memoranda and presented oral argument, after which the court took the matter under advisement. Being now fully advised, the court sets forth its Memorandum Decision and Order. FACTS On December 1, 1983, Cruz filed her application for Social Security Disability and Supplemental Security Income benefits (“benefits”). Cruz alleged that she was disabled from March 15,1983, based on her epilepsy and mental retardation. Cruz’s application was denied on February 14, 1984, after which her timely request for reconsideration of the denial was denied. An Administrative Law Judge (“AD”) affirmed the denial of Cruz’s benefits on April 22, 1985. Cruz then requested review by the Appeals Council of the Social Security Administration. On July 12, 1985, the Appeals Council refused review, and on September 9, 1985, Cruz filed a complaint in this court seeking judicial review of a final decision of the Secretary under 42 U.S.C. §§ 405(g) and 1383(c)(3). Pursuant to § 405(g) the Secretary, prior to filing his answer, moved for and the court ordered remand to the Social Security Administration. The basis of the Secretary’s motion was that remand of this case for redetermination under new mental impairment regulations was required by § 5(c) of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 1984 U.S.Code Cong. & Admin.News (98 Stat.) 1794 (1984) (codified in scattered sections of 42 U.S.C.) (the “Reform Act”). On remand the Appeals Council found that plaintiff was disabled from March 15,1983, and was entitled to benefits from that date. Cruz’s attorneys now seek entry of final judgment, and an award of fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ANALYSIS The EAJA provides for an award of “fees and other expenses” to a “prevailing party” in any civil action “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award" }, { "docid": "21415529", "title": "", "text": "has at long last recognized the plaintiff as having been disabled all along since 1979, that recognition came about only after five administrative hearings, two remands, and an ultimately mistaken denial of benefits over an eight-year period. Nevertheless this court is directed not by empathy, but by law. Having reviewed the applicable law and the entire four-volume record, the court must necessarily deny an EAJA award, recognizing the decision as a close call. II. Until recently, 28 U.S.C. § 2412 allowed judgment for costs but not for fees, when a party prevailed in a suit against the United States, unless otherwise permitted by statute. 28 U.S.C.A. § 2412; Pub.L. 89-507, § 1, 80 Stat. 308 (1966). In 1980 the section was amended by the addition of the Equal Access to Justice Act (EAJA), P.L. 96-481, effective October 1, 1981, out of a concern that private parties might suffer from unreasonable government action without challenge, because of the economic burdens of litigation. With the potential disparity of resources as a consideration, the EAJA provided that attorneys’ fees and costs would be awarded to the prevailing party unless the government’s position was shown to be substantially justified or unless special circumstances rendered an award unjust. See, Annotation, Attorneys’ Fees Against Government, 69 A.L.R.Fed. 130 (1984). The original act expired on October 1, 1984, but contained a sunset provision extending coverage to cases commenced but not finally resolved prior to October 1, 1984. Smidt v. NLRB, 810 F.2d 638, n. 1 (7th Cir.1987). On August 5, 1985, the EAJA was re-enacted and amended to, among other things, clarify the meanings of “final judgment,” “substantially justified,” and “prevailing party.” The amended version also erased any doubt that the EAJA was meant to apply to Social Security cases. Equal Access to Justice Act Amendments, Pub.L. No. 99-80, 99 Stat. 183 (1985); See also, Haney v. Heckler, 613 F.Supp. 12, 14 (N.B.I11.1984). The new act provided that except as otherwise indicated, it would apply to cases pending on or commenced on or after the date of the enactment, that being August 5, 1985. Smidt, 810 F.2d" }, { "docid": "19687637", "title": "", "text": "filed suit to secure a reversal of that decision, or alternatively, to win a remand of the claim to the agency. The matter was heard before a magistrate of this court on cross motions for summary judgment, reference having been made pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate recommended that the case be returned to the Secretary for further elucidation of the pertinent medical data. On October 9, 1984, this court adopted the magistrate’s recom mendation and ordered a remand for augmented evidentiary proceedings and further findings. See 42 U.S.C. § 405(g). Having succeeded to this limited extent, Vascera (without awaiting the outcome of the further proceedings before the agency) moved for an award of attorneys’ fees under § 2412(d)(1)(A) of the EAJA, quoted ante. This motion was likewise heard before the magistrate ancillary to the 28 U.S.C. § 636(b)(1)(B) reference. On November 15, 1985, the magistrate issued a supplementary report and recommendation (Report) suggesting that such fees be awarded. Report at 6. The Secretary seasonably objected. This court entertained oral argument on January 10, 1986 and took the matter under advisement at that time. II. CONTENTIONS OF THE PARTIES It is by now settled beyond peradventure that the EAJA applies to suits prosecuted in federal courts by those who, having been denied social security disability benefits at the administrative level, garner such emoluments as a result of judicial review. See, e.g., Cornella v. Schweiker, 728 F.2d 978, 982-83 (8th Cir.1984); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir.1983); Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir.1983); McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). 3(EAJA awards do not, of course, pertain to services rendered before the agency; on its face, the Act applies only to “court” proceedings.) The narrower question which lies at the threshold of this application is whether Vascera became a “prevailing party” within the reach of the EAJA when he succeeded in procuring from this court an order remanding his claim to the Secretary for" }, { "docid": "19687659", "title": "", "text": "dismissed without prejudice to its renewal at a future date if Vascera’s quest for the social security benefits at issue ultimately bears fruit. The Secretary is directed, within thirty days next following the rendition of a final decision after the proceedings on remand have been completed, to file the same with this court. If no appeal is taken therefrom, \"the Secretary shall, promptly upon the expiration of the applicable appeal period, move for the entry of final judgment in accordance therewith. It is so ordered. . Subsection (d) of § 2412 was repealed on October 1, 1984, subject to the proviso that it would continue to apply through final disposition of any action theretofore commenced. See United States v. Yoffe, 775 F.2d 447, 448 n. 1 (1st Cir.1985). Inasmuch as this action was begun in 1982, when the plaintiff requested judicial review of a final decision of the Secretary of Health and Human Services (Secretary) under 42 U.S.C. § 405(g), and was pending on the merits on October 1, 1984, it slips neatly within the integument of the savings clause. . In any event, on August 5, 1985, the President signed P.L. 99-80, 99 Stat. 183 (1985) (hereinafter “1985 Reenactment”), which as a practical matter reenacted, extended, and amended § 2412(d). . Indeed, the 1985 Reenactment explicitly ratified this line of judicial thought. Id. at §§ 2(a), 3. . See Cook v. Heckler, 739 F.2d 396 (8th Cir. 1984) (opinion on the merits, reversing and remanding to the Secretary for further proceedings). Mr. Cook had won his case before the AU, id. at 397-98. The Secretary’s Appeals Council, however, rejected the hearing officer’s findings and conclusions, and denied the claim. Id. at 398. In so doing, the “Council took a curious approach,” id., ignored binding Eighth Circuit precedent squarely in point, id., at 398-99, applied an incorrect legal standard, id., and improperly twisted expert testimony of record in an attempt to buttress its (erroneous) conclusion. Id. at 399. . This court rejects the formulation of Bohn, supra, to the effect that fee entitlement in the remand context depends upon whether" }, { "docid": "22734597", "title": "", "text": "to the completion of a civil action. We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant’s entitlement to benefits, the proceedings on remand are an integral part of the “civil action” for judicial review, and thus attorney’s fees for representation on remand are available subject to the other limitations in the EAJA. We thus affirm the judgment of the Court of Appeals on this issue and remand the case to that court for further proceedings consistent with this opinion. It is so ordered. Justice White, with whom The Chief Justice, Justice Scalia, and Justice Kennedy join, dissenting. In 1985, Congress reenacted the Equal Access to Justice Act (EAJA), 99 Stat. 183, authorizing awards of attorney’s fees to parties that prevail in litigation against the United States unless the position taken by the United States is substantially justified or the award unjust. Fees can be awarded only when “incurred ... in any civil action . . . brought. . . in any court having jurisdiction of that action,” 28 U. S. C. §2412(d)(1)(A) (1982 ed., Supp. V), or when incurred in connection with an “adversary adjudication” conducted by an agency, 5 U. S. C. § 504(a)(1) (1982 ed., Supp. V). Congress refused to extend the EAJA to fees incurred in proceedings before the Social Security Administration, which are non-adversarial, leaving supporters of such an extension “a fight which will have to be fought another day.” 131 Cong. Rec. 20350 (1985) (remarks of Sen. Heflin). The majority today awards those supporters a partial victory in that fight without either side having stepped into the legislative ring. Because this judicial TKO ignores the plain language of the EAJA as well as its legislative history, I dissent. The majority correctly rejects the reasoning of the Court of Appeals that once the Secretary took a position in District Court, by arguing that respondent was not entitled to benefits, the case became an “adversary adjudication” and respondent was entitled under §" }, { "docid": "19687658", "title": "", "text": "On this record, there is no principled way to distinguish McGill and its progeny. Under the applicable rule of law, a social security claimant who secures a remand of his case to the agency for a de novo hearing may not, at the time of remand, recover fees and costs under 28 U.S.C. § 2412(d)(1)(A). V. CONCLUSION In fine, the plaintiff’s reach exceeds his existing grasp. This court confidently joins the mainstream of judicial thought, as announced by, inter alia, the Second, Third, and Eighth Circuits (and as adopted in two unpublished orders of the First Circuit). The reasoning of those decisions is inexpugnable. Access to the EAJA in this and kindred causes is inextricably linked to “merits” success. As matters now stand, Vascera is not yet — and may never be — a prevailing party within the ambit of the EAJA. Accordingly, he has no current entitlement to the benefices of 28 U.S.C. § 2412(d)(1)(A). For the reasons noted herein, the magistrate’s recommendation is rejected and the petition for counsel fees is denied and dismissed without prejudice to its renewal at a future date if Vascera’s quest for the social security benefits at issue ultimately bears fruit. The Secretary is directed, within thirty days next following the rendition of a final decision after the proceedings on remand have been completed, to file the same with this court. If no appeal is taken therefrom, \"the Secretary shall, promptly upon the expiration of the applicable appeal period, move for the entry of final judgment in accordance therewith. It is so ordered. . Subsection (d) of § 2412 was repealed on October 1, 1984, subject to the proviso that it would continue to apply through final disposition of any action theretofore commenced. See United States v. Yoffe, 775 F.2d 447, 448 n. 1 (1st Cir.1985). Inasmuch as this action was begun in 1982, when the plaintiff requested judicial review of a final decision of the Secretary of Health and Human Services (Secretary) under 42 U.S.C. § 405(g), and was pending on the merits on October 1, 1984, it slips neatly within the" }, { "docid": "1148491", "title": "", "text": "this case was pending on the merits at the time of the enactment of the FCAA, and the Court has basic authority to entertain this EAJA application. See Jones v. Brown, 6 Vet.App. 101, 107 (1993) (en banc) (holding that the term “case pending” in FCAA § 506 included only cases pending before the Court on the merits on or after October 29, 1992), appeal docketed, No. 94-7057 (Fed.Cir. Mar. 28, 1994). Section 2412(d)(1)(B) of title 28, U.S.Code, states: “A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses”. Subsection (d)(2)(G) defines “final judgment” as “a judgment that is final and not appealable, and includes an order of settlement”. We have held that “when this Court issues a remand order, the 30-day EAJA filing period begins when the Court has entered judgment and the 60-day appeal period has run”. Stillwell, 6 Vet.App. at 300. This holding was based on the following: (1) Rule 36(b) [now Rule 36] of the Court’s Rules of Practice and Procedure (Rules); (2) the Federal Circuit’s decision in Travelstead v. Derwinski, 978 F.2d 1244, 1248 (Fed.Cir.1992), which held that a remand order issued by this Court was a final, appealable order where the remand decision had interpreted a statute and compelled action by the Secretary; and (3) the Supreme Court’s decision in Shalala v. Schaefer, — U.S. -, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), which held that the 30-day period for filing an EAJA application begins immediately upon expiration of the time for appeal of a Social Security Act “sentence four” remand order pursuant to 42 U.S.C. § 405(g). The Court in Stillwell reasoned that, although Schaefer had involved a remand to the Secretary of Health and Human Services (HHS) under 42 U.S.C. § 405(g), the holding of Schaefer applied to remands from this Court as well, because “the only fair reading of the language and import of the Schaefer decision compels the conclusion that it applies whenever judgment is entered as a consequence" }, { "docid": "2101805", "title": "", "text": "JAMES DICKSON PHILLIPS, Circuit Judge: Josephine Campbell appeals the district court’s order denying an award of attorneys fees pursuant to the Equal Access to Justice Act, 28 U.S.C.A. § 2412 (West Supp.1986) (the Act). Because we conclude that the district court did not err in finding that the position taken by the Secretary of Health and Human Services (the Secretary) in opposing an award of disability benefits was “substantially justified” within the meaning of the Equal Access to Justice Act, we affirm. I Josephine Campbell filed a complaint in the district court challenging the Secretary’s final decision denying her social security disability benefits. The district court granted Campbell’s motion for summary judgment, reversing the decision of the Secretary. Final judgment was entered in favor of Campbell, and the Secretary did not appeal. On September 4, 1985, after the reenactment of the Equal Access to Justice Act, see Pub.L. No. 99-80, 99 Stat. 183 (1985), Campbell moved for an award of attorneys fees pursuant to the Act. Campbell contended that the Secretary’s litigation position opposing her attempt to secure disability benefits was not “substantially justified” within the meaning of the Act. See 28 U.S.C.A. § 2412(d)(1)(A). The district court concluded that the Secretary’s position on the merits had been “substantially justified,” and denied the petition for fees. Campbell’s disability claim concerned itself with heart disease and diabetes that she claimed prevent her from gainful employment. Campbell’s former jobs, including work as a cafeteria worker, involved standing a minimum of six hours per day. A finding that she was unable to return to her former work would have required her to be found disabled because of her age, education, and unskilled work history. At the relevant time, Campbell’s primary physician was Dr. Lazaro, a general practitioner and obstetrics/gynecology specialist. He had treated Campbell’s diabetes and heart conditions for five years. He diagnosed serious heart trouble, and opined that she was unable to work. At the request of the Secretary, Campbell was also examined by Dr. Lee, a specialist in cardiology. Lee concluded that “unless her hospital records show significant organic heart disease" }, { "docid": "7307238", "title": "", "text": "with my colleagues that Mr. Hendricks is not entitled to attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), because he did not show that the position of the United States in this case lacks “substantial justification” and therefore join Parts I and II.A of the court’s opinion. I disagree with my colleagues to the extent they conclude that no person whose case was remanded to the Secretary under the Social Security Disability Benefits Reform Act of 1984, 98 Stat. 1794, may recover fees under the EAJA. An award is both appropriate and necessary when the claimant would have prevailed in his quest for benefits, and would have recovered fees, had the Reform Act never existed. Much can be said for the view that the Reform Act was designed to take tens of thousands of disability cases out of the courts and speed them on their way to a final administrative disposition. Petitions under the EAJA could embroil the courts in some of the disputes that were packed off to another forum. Yet as the majority emphasizes, neither the Reform Act nor its legislative history mentions the EAJA. Repeal by implication thus is implausible, see Traynor v. Tumage, — U.S. -, -, 108 S.Ct. 1372, 1381, 99 L.Ed.2d 618 (1988) — the more so since the EAJA was reenacted after the Reform Act, without anyone’s mentioning that statute. Pub.L. 99-80, 99 Stat. 184 (Aug. 5, 1985). So the EAJA applies to the extent it ordinarily would. The question becomes whether Hendricks is a “prevailing party”. Hendricks prevailed. He was receiving disability benefits, which the Secretary cut off in March 1983. Had he accepted this decision, benefits would have stayed cut off. Instead Hendricks filed this suit. Because — and only because — he did this, his benefits ultimately were restored, not only for the future but also retroactively. The suit was pending when the Reform Act went into effect on September 19, 1984. The claim was remanded automatically, and Hendricks was given benefits on remand. No suit in 1983, no pending action in September 1984, no" }, { "docid": "19687636", "title": "", "text": "MEMORANDUM AND ORDER SELYA, District Judge. This case presents a question regarding the current entitlement of the plaintiff, Richard Vascera, to recover counsel fees under 28 U.S.C. § 2412(d)(1)(A), a central provision of the Equal Access to Justice Act (EAJA). At the times material hereto, the statute intoned in pertinent part that: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, ... incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (1982). I. BACKGROUND The Secretary’s 1982 final decision, from which this action arose, denied social security disability insurance benefits and supplementary security income payments to Richard Vascera. The claimant, contending that the Secretary’s edict was not bottomed upon substantial evidence in the record, filed suit to secure a reversal of that decision, or alternatively, to win a remand of the claim to the agency. The matter was heard before a magistrate of this court on cross motions for summary judgment, reference having been made pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate recommended that the case be returned to the Secretary for further elucidation of the pertinent medical data. On October 9, 1984, this court adopted the magistrate’s recom mendation and ordered a remand for augmented evidentiary proceedings and further findings. See 42 U.S.C. § 405(g). Having succeeded to this limited extent, Vascera (without awaiting the outcome of the further proceedings before the agency) moved for an award of attorneys’ fees under § 2412(d)(1)(A) of the EAJA, quoted ante. This motion was likewise heard before the magistrate ancillary to the 28 U.S.C. § 636(b)(1)(B) reference. On November 15, 1985, the magistrate issued a supplementary report and recommendation (Report) suggesting that such fees be awarded. Report at 6. The Secretary seasonably objected. This court entertained oral argument on January" }, { "docid": "5482168", "title": "", "text": "McMILLIAN, Circuit Judge. These cases were consolidated for purposes of appeal. Both appeals involve applications for attorney’s fees and other expenses to be awarded under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(2)(A). Following oral argument, the court requested supplemental briefing on the issue of the scope of EAJA coverage in light of the 1985 re-enactment and amendment of the EAJA. Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183. For the reasons discussed below, in No. 87-1999, we affirm in part, reverse in part and remand the case for further proceedings. We affirm the order of the district court in No. 87-2164. No. 87-1999 Kelly v. Bowen In 1970 Theodore Kelly applied for and was awarded disability benefits. In 1982 the Secretary of the Department of Health and Human Services (Secretary) determined that Kelly was no longer disabled and that his entitlement to disability benefits would end in December 1982. This determination was upheld by an administrative law judge (AU) and review was denied by the Appeals Council. Kelly then sought judicial review of the termination decision in federal district court. In May 1984, the district court decided that the AU had failed to fully develop the record and remanded the case to the Secretary for further administrative proceedings. On remand the Secretary determined that Kelly was entitled to a continued period of disability benefits. In May 1987 the district court dismissed the case without prejudice. Counsel for Kelly then filed a motion for attorney’s fees under § 206(b)(1) of the Social Security Act, 42 U.S.C. § 406(b)(1), and under the EAJA. The district court denied the claim for attorney’s fees for work performed at the administrative level and then deducted seven hours spent preparing the EAJA fee application. The district court calculated the attorney’s fees award on the basis of a total of 38.25 hours and determined that, for purposes of the Social Security Act, a reasonable attorney’s fee was $100 per hour, for a total award of $3825. Of that amount, the district court awarded $2868.75 (38.25 hours at $75 per hour)," }, { "docid": "23543375", "title": "", "text": "and unequivocal notice” to Myers that it would not appeal. Under these special circumstances, Myers had ample knowledge that the Secretary could not and would not be appealing. As a result, we conclude that Myers’s application for fees, filed more than thirty days after the district court’s final order dismissing the case, was untimely. Cf. Dunn v. United States, 775 F.2d 99, 105 (3d Cir.1985) (filing of uncontested consent judgment was final, nonappealable under the EAJA when no party opposed or was aggrieved by the judgment; hence, neither side could appeal it); contra LaManna v. Secretary of Health and Human Services, 651 F.Supp. 373 (N.D.N.Y.1987). In sum, we conclude that the fee petitions filed by Parker, Grimes, and Cohen were timely filed and that the district court had jurisdiction to consider the merits of the petitions. Accordingly, we REVERSE the contrary judgments of the district court in these three cases. Because we conclude that the application for attorney’s fees filed by Myers, however, was not within the EAJA’s time constraints, we AFFIRM the district court’s judgment denying her application for fees. REVERSED in part, and AFFIRMED in part. . Equal Access to Justice Act, Pub.L. No. 96-481, 94 Stat. 2325 (1980), as extended and amended by Pub.L. No. 99-80, 99 Stat. 183 (1985) (codified in pertinent part at 28 U.S.C.A. § 2412). . This issue has been the result of a flurry of recent federal court opinions. The results, however, have been widely divergent. Compare, e.g., Melkonyan v. Heckler, 895 F.2d 556 (9th Cir.1990) (application for EAJA attorney's fees must be filed within 30 days after the Secretary’s final decision on remand awarding claimant full benefits); Watson v. Sullivan, 735 F.Supp. 971, 973-74 (D.Ore.1990) (same); Wagaman v. Bowen, 698 F.Supp. 187, 189-90 (D.S.D. 1988) (same) with, e.g., Brown v. Secretary of Health and Human Services, 747 F.2d 878, 884-85 (3d Cir.1984) (application need not be filed until after district court issues final judgment approving of Secretary’s remand decision and dismissing case); Guthrie v. Schweiker, 718 F.2d 104, 106 (4th Cir.1983) (same); Sargent v. Secretary of Health and Human Services, 739" }, { "docid": "23624685", "title": "", "text": "the “$75” figure originally established in 1981. The question thus arises whether courts are to measure the cost of living increase provided for by the current version of the EAJA from 1981 or 1985. This appears to be a question of first impression in our circuit. We believe that Congress, in retaining the $75 cap, did not intend that courts should ignore the inflation that had occurred between 1981 and 1985. The fact that Congress carried the $75 cap from the original act into the 1985 version of the EAJA does not mean that Congress considered and rejected the notion that courts might take into account increases in the cost of living prior to the reenactment. The retention of the $75 cap merely sug gests that Congress considered and rejected any legislative reformulation of the cap. Congress expressed no intent to deflate the real market value of the cap in 1985. The legislative history behind § 2412(d) supports our determination that in 1985 Congress intended to maintain the original effectiveness of the 1981 provision. Section 2412(d) was reenacted in 1985 because Congress previously had repealed the provision. See 28 U.S.C. § 2412 note (“Repeal of Subsection (d),” effective as of Oct. 1, 1984) (1982). In 1985, when reenacting the provision, Congress declared that section 2412(d) “ ‘shall be effective ... as if [it] had not been repealed 5 U.S.C. § 504 note (“Revival of Previously Repealed Provisions”) (Supp.1985) (quoting Act of Aug. 5,1985, Pub.L. 99-80 § 6(a), 99 Stat. 186) (emphasis added). This instruction implies that, when Congress reenacted § 2412(d), it intended to maintain the cap’s 1981 real market value. Our conclusion is in accord with that reached by the Second Circuit in Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 705-07 (2d Cir.1987). After canvassing the legislative history of Congress’ reenactment of the EAJA, that court concluded that the 1985 Congress “intended the measuring point for inflationary increases in the attorney’s fee cap to be October 1, 1981.” Id. at 707. The court explicitly rejected the government’s argument that, when Congress decided in 1985 to" }, { "docid": "12067675", "title": "", "text": "Buck, attached as an appendix to Plaintiff’s Motion for Attorney Fees). On August 17, 1989, the Secretary filed a Notice of Filing Decision on Remand with the district court. The district court did not enter judgment on the Secretary’s final decision. On September 14, 1989, Buck filed a motion for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (the “EAJA”), and a motion to compel the Secretary to file a transcript of the proceedings on remand. Chief Judge Rubin held that the Secretary’s original decision was not supported by substantial evidence but that his litigation position had been substantially justified, and denied both requests on October 30, 1989. Buck filed a timely notice of appeal on December 18, 1989. II. The EAJA imposes a time limit on application for attorney fees requiring that an application be filed “within thirty days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). This time limit is jurisdictional. Allen v. Secretary of Health & Human Servs., 781 F.2d 92, 94 (6th Cir.1986). Whether the district court possessed subject matter jurisdiction to review Buck’s EAJA petition involves a question of law which is reviewable de novo. See Feldpausch v. Heckler, 763 F.2d 229, 230 (6th Cir.1985). Jurisdiction in this case hinges on what constitutes a final judgment for the purpose of triggering the thirty day time period to apply for EAJA fees in a case where the Secretary issues a decision fully favorable to the claimant on remand. If such a favorable decision is final, then Buck’s application was untimely. A “final judgment” is defined as “a judgment that is final and not appealable, and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G); Feldpausch, 763 F.2d at 232. In the present case, the Secretary issued a decision on remand that was fully favorable to Buck. The Secretary's final decision was issued by the Appeals Council on July 31, 1989. See 20 C.F.R. § 416.1484 (Appeals Council decision is the final decision of the Secretary). Buck did not file his application for fees under the EAJA until forty-five days" }, { "docid": "21415530", "title": "", "text": "fees and costs would be awarded to the prevailing party unless the government’s position was shown to be substantially justified or unless special circumstances rendered an award unjust. See, Annotation, Attorneys’ Fees Against Government, 69 A.L.R.Fed. 130 (1984). The original act expired on October 1, 1984, but contained a sunset provision extending coverage to cases commenced but not finally resolved prior to October 1, 1984. Smidt v. NLRB, 810 F.2d 638, n. 1 (7th Cir.1987). On August 5, 1985, the EAJA was re-enacted and amended to, among other things, clarify the meanings of “final judgment,” “substantially justified,” and “prevailing party.” The amended version also erased any doubt that the EAJA was meant to apply to Social Security cases. Equal Access to Justice Act Amendments, Pub.L. No. 99-80, 99 Stat. 183 (1985); See also, Haney v. Heckler, 613 F.Supp. 12, 14 (N.B.I11.1984). The new act provided that except as otherwise indicated, it would apply to cases pending on or commenced on or after the date of the enactment, that being August 5, 1985. Smidt, 810 F.2d 638, n. 1 (7th Cir.1987). In this case, the merits of the underlying action remained pending on August 5, 1985. Although under the law of this circuit, the applicable differences have been viewed as minimal, the 1985 amendments apply to this case. Id. Under the 1980 version of the EAJA, it was generally agreed that the test of substantial justification involved a standard of reasonableness. (See, Bartell, Civil Practice and Litigation in Federal and State Courts, ALI-ABA Resource Materials (4th ed., January 1987), updated as Federal Court Awards of Attorneys’ Fees, 7th Cir. Federal Judicial Conference Workshop (September 29, 1987)). On the basis of the legislative history of the 1985 amendments, something more than reasonableness has been required by a number of the circuit and district courts. See, Id. at 88, collecting cases; eg., Riddle v. Secretary of Health & Human Services, 817 F.2d 1238, 1244 (6th Cir.1987); Gamber v. Bowen, 823 F.2d 242, 244 (8th Cir.1987); Devine v. National Treasury Employees Union, 805 F.2d 384, 386 (Fed.Cir.1986); Haitian Refugee Center v. Meese, 791 F.2d" }, { "docid": "12599709", "title": "", "text": "OPINION OF THE COURT GIBBONS, Chief Judge: Community Legal Services, Inc. of Philadelphia (Community Legal Services), appeals on behalf of its client, Charles Allen, from an order awarding attorneys fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Supp. Ill (1985)) (EAJA). Allen, an applicant for disability benefits under the Social Security Act, was successful in obtaining judicial review, pursuant to 42 U.S.C. § 405(g) (1982), of the initial agency denial of such benefits, and after a remand from the district court, ultimately received an award. Allen requested attorneys fees, and the district court, finding that the Secretary’s position had not been substantially justified, awarded $75.00 an hour for 13.5 hours of legal services. The court refused, however, to adjust the $75.00 an hour rate upward to take into account inflation since that statutory rate was fixed in 1981. The court held that Congressional reenactment of the EAJA in August 1985 required that inflation prior to that date must be disregarded. Alternatively, the court concluded that Allen failed to justify the cost of living adjustment. We will reverse. I. Although the amount involved in this appeal is small, the issue of statutory interpretation is of considerable significance to legal services organizations which represent claimants against federal agencies. Section 2412(d)(1)(A) of the EAJA provides for a mandatory award of counsel fees to qualified prevailing parties in certain civil actions against the United States. Section 2412(d)(2)(A)(ii) provides that “attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living ... justifies a higher fee.” We have noted that “the cost of living adjustment provision seems designed to provide a disincentive to agencies to prolong the litigation process.” Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 703 F.2d 700, 713 (3d Cir.1983). Originally enacted in 1980, the Equal Access to Justice Act became effective on October 1, 1981. The Act provided, however, Effective October 1, 1984, subsection (d) of section 2412, as added by subsection (a) of this section, is repealed, except that the provisions of" }, { "docid": "19687660", "title": "", "text": "integument of the savings clause. . In any event, on August 5, 1985, the President signed P.L. 99-80, 99 Stat. 183 (1985) (hereinafter “1985 Reenactment”), which as a practical matter reenacted, extended, and amended § 2412(d). . Indeed, the 1985 Reenactment explicitly ratified this line of judicial thought. Id. at §§ 2(a), 3. . See Cook v. Heckler, 739 F.2d 396 (8th Cir. 1984) (opinion on the merits, reversing and remanding to the Secretary for further proceedings). Mr. Cook had won his case before the AU, id. at 397-98. The Secretary’s Appeals Council, however, rejected the hearing officer’s findings and conclusions, and denied the claim. Id. at 398. In so doing, the “Council took a curious approach,” id., ignored binding Eighth Circuit precedent squarely in point, id., at 398-99, applied an incorrect legal standard, id., and improperly twisted expert testimony of record in an attempt to buttress its (erroneous) conclusion. Id. at 399. . This court rejects the formulation of Bohn, supra, to the effect that fee entitlement in the remand context depends upon whether or not the claimant \"has established a prima facie case of disability at the administrative level” antecedent to the remand. Id., at 236. That approach strikes this court as little more than an effort to devise a Bohn of contention where none logically exists. (The Bohn rationale is in any event inapposite here, as Vascera made no such showing below.) . Under the bifurcated statutory paradigm, the Secretary, on remand, has no authority to award fees for that part of the proceeding conducted before the district court. . MacDonald has been discussed (and distinguished) by the Second Circuit in McGill, 712 F.2d at 32, and there is no need to explore it further for purposes of the case at bar. It suffices to say that Vascera's suit is in no material respect analogous to MacDonald. Accordingly, this court expresses no opinion as to whether or not MacDonald properly falls outside of the sweep of the McGill-Brown-Cook trilogy." }, { "docid": "1894205", "title": "", "text": "date to preclude him from engaging in gainful employment. On October 26, 1981, the Appeals Council affirmed the A.L.J.’s decision, thereby rendering it the final decision of the Secretary of Health and Human Services (Secretary). On December 23, 1981, the plaintiff filed the instant action in this Court pursuant to the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the Secretary’s decision. On January 20, 1983, I accepted a recommendation of the United States Magistrate to affirm the administrative disposition. The plaintiff appealed my ruling, and on August 9, 1983, the United States Court of Appeals for the First Circuit reversed the court order and remanded the cause to the Secretary for further proceedings consistent with its opinion. The court found that A.L.J. erroneously based his conclusions on the absence of a medical report, even though the plaintiff's treating physician testified at the hearing as to its contents and affirmatively indicated that the disability existed prior to the date in question. The court noted that the A.L.J., “if he had doubts concerning the 1978 report, should have specifically requested the claimant to produce it before relying on its absence as a reason for denying benefits.” Alexander v. Heckler, No. 83-1132, slip op. (1st Cir. Aug. 9, 1983). On remand, the Secretary entered a decision favorable to the plaintiff and the plaintiff was notified of that decision on March 19, 1984. Accordingly, on May 2, 1984, the United States Attorney’s office communicated with plaintiff’s counsel to request that the district court action be dismissed. The plaintiff refused. Instead, he filed a motion in early January of 1985 to compel the Secretary to file with this Court notice and a transcript of the most recent admin istrative decision, purportedly in accordance with the requirements of the Social Security Act. That motion was denied. Finally, on January 30, 1985, the plaintiff made the fees application which is the subject of the immediate controversy. The plaintiff argues that his fee request is not untimely since a final judgment in this action was never entered by this Court. The defendant argues that" }, { "docid": "14317546", "title": "", "text": "may appeal such an order. Having negotiated and agreed to its terms those parties are not aggrieved by it, and thus neither may appeal. Petitioners point out, however, that in class actions members of the affected class may seek leave to intervene in order to object to a settlement, and may appeal because they are dissatisfied with the relief obtained. While there is some merit to that contention, we do not find it controlling here. In this instance no application for intervention was filed either prior to the entry of the consent decree or during the thirty-day period specified in section 2412(d)(1)(B). Mindful of the policy of repose behind that section, we hold that absent any motion for intervention prior to the expiration of the thirty-day period, a consent judgment, even in a class action, shall be deemed final as of the date of its entry. III. The district court did not lack subject matter jurisdiction to consider the fee petition. The judgment appealed from must, therefore, be reversed and the case remanded for further proceedings. . The Act has now been restored. See Act of Aug. 5, 1985, Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183. . When it recently extended the Act, Congress increased this amount to two million dollars. See Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(1)(A), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)). . Compare Berman v. Schweiker, 713 F.2d 1290, 1300 (7th Cir.1983) (Equal Access to Justice Act applies retroactively); Taylor v. United States, 749 F.2d 171 (3d Cir.1984) (thirty-day period does not expire until time for appeal has expired). ADAMS, Circuit Judge, dissenting. I respectfully dissent. Although I share the majority’s concern over the hardship resulting from a strict application of the statute in this case, I believe we are constrained by firmly established principle to affirm the trial court’s ruling that it lacked jurisdiction to entertain the fee petition at issue here. The guiding precept in this field is clear. The Equal Access to Justice Act (EAJA) represents a" } ]

[ { "docid": "1375219", "title": "", "text": "supplemental agreement. After concluding that this controversy was not within the arbitration clause, the District Court determined that defendant could not offset the amount due plaintiffs by the vacation pay defendant had given its employees. We agree that this controversy was outside the arbitration clause of the purchase agreement and that the attempted offset was improper. Since this is a diversity case, Illinois law on arbitration is determinative, but the federal and Illinois authorities are in accord in this field. It is well settled that arbitration is a matter of contract, and a party cannot be required to arbitrate any dispute which he has not agreed to arbitrate. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed. 2d 462; Local Union No. 483 v. Shell Oil Co., (7th Cir., September 22, 1966) 369 F.2d 526 Independent Petroleum Workers v. American Oil Co., 324 F.2d 903, 906 (7th Cir. 1964); School District No. 46 v. Del Bianco, 68 Ill.App.2d 145, 154, 156, 215 N.E.2d 25, 29, 31 (2d Dist., 1966). It is for the courts to determine whether the claim is “on its face” covered by the contract. United Steel Workers v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403; Local Union No. 483 v. Shell Oil Co., (7th Cir., September 22, 1966) 369 F.2d 526; School District No. 46 v. Del Bianco, 68 Ill.App.2d at page 154, 215 N.E.2d at page 29. The Uniform Arbitration Act, adopted in Illinois in 1961, provides for the court to determine arbitrability if one of the parties denies it has agreed to arbitrate. Ill.Rev.Stats. (1963) Ch. 10, Sec. 102(a). In accordance with this statutory policy, the District Court correctly found that this claim was not on its face governed by the arbitrability clause of the contract, so that it was not referable to arbitration. This particular contract does not contain any broad clause providing for arbitration of all disputes between the parties as to the meaning, interpretation and application of the contract, in contradistinction to the broad arbitration clauses involved in United Steel Workers" } ]

[ { "docid": "16856176", "title": "", "text": "Union Local 287 v. Frito-Lay, Inc., 849 F.2d 1210, 1211 (9th Cir.1988). The central issue in this case, the arbitra-bility of a dispute under a collective bargaining agreement, is a question of contract interpretation that we review de novo. McKinstry Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 16, 859 F.2d 1382, 1385 (9th Cir.1988). “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960)). The threshold question of arbitra-bility—which is no less than the question of the arbitrator’s jurisdiction to decide disputes—is thus a question for judicial resolution. AT & T, 475 U.S. at 649, 106 S.Ct. at 1418. If arbitrators were permitted to define their own jurisdiction, employers and unions would lose the power to determine which disputes they would like to have arbitrated. Having lost that power, they would become reluctant to incorporate arbitration provisions in their collective bargaining agreements. As the Court emphasized in AT & T, such a result would “undercut[] the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements.” 475 U.S. at 651, 106 S.Ct. at 1419. These are the rationales underlying the rule that “[ujnless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” Id. at 649, 106 S.Ct. at 1418. Of course, this rule is subject to an important caveat. In considering whether the Union’s grievance is arbitrable, we must carefully avoid ruling on the merits of that grievance. Id. The Court has expressed this caveat in strong terms. In AT & T, the Court warned: Whether “arguable” or not, indeed even if it appears to the court to be frivolous, the union’s claim that the employer has violated" }, { "docid": "12680488", "title": "", "text": "analysis, courts must distinguish between contract provisions that concern “arbitrability” — i.e., what sorts of disputes are proper subjects for arbitration — and those that do not. This distinction implies that arbitrators may exceed their powers either by misconstruing a contract provision in a dispute that was properly before them, or by engaging in an inquiry that was not properly arbitrable. And courts must show different degrees of deference to an arbitration panel’s determination in each case: When a reviewing court is called upon to determine whether an arbitrator, in passing on a matter concededly within his jurisdiction, misconstrued the contract in question, great deference is appropriate; to use Justice Douglas’ often-cited phrase, the award in such a case must be affirmed if it “draws its essence” from the governing agreement. [United Steelworkers of Am., 363 U.S. at 597, 80 S.Ct. 1358].... Where, however, a party to an arbitration proceeding challenges the arbitrator’s authority to decide a particular issue, the function of a reviewing court is distinctly different. The threshold question of arbitrability is one of law, and a reviewing court is obligated to make its own determination of the issue. Mobil Oil Corp. v. Local 8-766, 600 F.2d 322, 324-25 (1st Cir.1979). The court’s decision may, of course, be informed by the arbitrator’s resolution of the arbitra-bility question, id. at 325, and ... where the scope of arbitration is “fairly debatable” or “reasonably in doubt,” the arbitrator’s assumption of jurisdiction should be upheld.... Butler Products Co. v. Unistrut Corp., 367 F.2d 733, 736 (7th Cir.1966). Neither arbitrators nor courts, however, have the prerogative to redraft an arbitration clause to require parties to arbitrate matters that they did not initially agree to arbitrate. Far-kar Co. v. R.A. Hanson DISC, Ltd., 583 F.2d 68, 72 (2d Cir.1978). Davis v. Chevy Chase Fin., Ltd., 667 F.2d 160, 167 (D.C.Cir.1981). We thus inquire as a threshold matter whether a claim that arbitrators have exceeded their powers attacks the “arbitrability” of a particular matter, or merely the consistency of an award with the terms of a contract on a matter that is properly arbitrable." }, { "docid": "8827908", "title": "", "text": "is “undeniably an issue for judicial determination.” AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Therefore, “[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” Id. at 649, 106 S.Ct. 1415; see also Brown v. Trans World Airlines, 127 F.3d 337, 340 (4th Cir.1997) (“The determination of the arbitration provision’s scope and meaning is for the court to resolve”); Local 637, Int’l Bhd. of Elec. Workers v. Davis H. Elliot Co., 13 F.3d 129, 132 (4th Cir.1993) (“Were arbitrators given the authority to decide their own jurisdiction, arbitration clauses would be far less popular”). But for matters within the scope of an arbitration clause, the arbitrator’s award is final and binding. A court does not “sit to hear claims of factual or legal error by an arbitrator,” and must defer to the arbitrator “as long as the arbitrator is even arguably construing or applying the contract.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); see also Mountaineer Gas Co. v. Oil, Chemical & Atomic Workers Int’l Union, 76 F.3d 606, 608 (4th Cir.1996) (describing the court’s role as determining “only whether the arbitrator did his job — not whether he did it well, correctly, or reasonably, but simply whether he did it” (citing Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir.1994))). The court nevertheless retains the obligation to insure that the arbitrator has acted within the contractually-drawn boundaries of his authority. This is important because an arbitrator ... does not sit to dispense his own brand of industrial justice.... [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Thus, a court" }, { "docid": "12680487", "title": "", "text": "agreement,’ and is not merely the arbitrator’s ‘own brand of industrial justice,’ the award is legitimate.” Beacon Journal Pub., 114 F.3d at 599 (quoting United Steelworkers of Am. v. Enter. Wheel & Car Co., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (I960)). And we have said that: An arbitrator’s award fails to draw its essence from the agreement when: (1) it conflicts with express terms of the agreement; (2) it imposes additional requirements not expressly provided for in the agreement; (3) it is not rationally supported by or derived from the agreement; or (4) it is based on “general considerations of fairness and equity” instead of the exact terms of the agreement. Beacon Journal Pub., 114 F.3d at 600 (citations omitted). These formulations of § 10(a)(4) require the reviewing court to consider all provisions of the contract or collective bargaining agreement on parity — to view each clause of the contract, and its consistency with the arbitrator’s award, as equally im plicating the arbitrator’s “powers.” But at a prior stage of the analysis, courts must distinguish between contract provisions that concern “arbitrability” — i.e., what sorts of disputes are proper subjects for arbitration — and those that do not. This distinction implies that arbitrators may exceed their powers either by misconstruing a contract provision in a dispute that was properly before them, or by engaging in an inquiry that was not properly arbitrable. And courts must show different degrees of deference to an arbitration panel’s determination in each case: When a reviewing court is called upon to determine whether an arbitrator, in passing on a matter concededly within his jurisdiction, misconstrued the contract in question, great deference is appropriate; to use Justice Douglas’ often-cited phrase, the award in such a case must be affirmed if it “draws its essence” from the governing agreement. [United Steelworkers of Am., 363 U.S. at 597, 80 S.Ct. 1358].... Where, however, a party to an arbitration proceeding challenges the arbitrator’s authority to decide a particular issue, the function of a reviewing court is distinctly different. The threshold question of arbitrability is one" }, { "docid": "9801154", "title": "", "text": "the relevant wording necessarily implied that the arbitrator’s authority was so limited. When viewed in the overall context of the Agreement, subparagraph 4b is susceptible, we believe, of no construction other than that offered by appellant. The clause clearly provides that the arbitrator may act only to determine the value of “offered” shares when CCFL and Davis cannot agree on the proper price. Appellees, citing the “federal policy to construe liberally arbitration clauses,” contend that where an arbitrator makes findings on the scope of his authority, such rulings should only be set aside where “completely irrational” or so “palpably faulty” that no judge could ever have made such a ruling. Appellees, however, misconstrue both the nature of the inquiry in this case and the appropriate role of the reviewing court in passing on arbitrability disputes. When a reviewing court is called upon to determine whether an arbitrator, in passing on a matter concededly within his jurisdiction, misconstrued the contract in question, great deference is appropriate; to use Justice Douglas’ often-cited phrase, the award in such a case must be affirmed if it “draws its essence” from the governing agreement. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. Although various tests have been employed in implementation of this broad standard, it is apparent that the arbitrator’s award should not be upset in such a case if it represents a plausible interpretation of the contract. Federated Employees of Nevada, Inc. v. Teamsters Local No. 631, 600 F.2d 1263, 1264 (9th Cir. 1979). Where, however, a party to an arbitration proceeding challenges the arbitrator’s authority to decide a particular issue, the function of a reviewing court is distinctly different. The threshold question of arbitrability is one of law, and a reviewing court is obligated to make its own determination of the issue. Mobil Oil Corp. v. Local 8-766, 600 F.2d 322, 324-25 (1st Cir. 1979). The court’s decision may, of course, be informed by the arbitrator’s resolution of the arbitrability question, id. at 325, and we agree with appellees that, where the scope of arbitration is “fairly debatable” or “reasonably in" }, { "docid": "9801156", "title": "", "text": "doubt,” the arbitrator’s assumption of jurisdiction should be upheld. Brief for Appellees at 10, quoting Butler Products Co. v. Unistrut Corp., 367 F.2d 733, 736 (7th Cir. 1966). Neither arbitrators nor courts, however, have the prerogative to redraft an arbitration clause to require parties to arbitrate matters that they did not initially agree to arbitrate. Farkar Co. v. R. A. Hanson DISC, Ltd., 583 F.2d 68, 72 (2d Cir. 1978). We therefore reject the proposition that the inclusion of a limited arbitration clause in a contract empowers an arbitrator to make largely nonreviewable decisions regarding his jurisdiction. To hold otherwise through endorsement of appellees’ conception of our reviewing function would run the unacceptable risk of denying parties their right to a judicial forum to resolve disputes. We reject as well appellees’ contention that, in the absence of express language to the contrary, an agreement to arbitrate an issue carries with it a concomitant power to determine arbitrability with limited judicial review. Brief for Appellees at 11. Where, as here, language is employed that suggests a limited scope of authority for the arbitrator, a more rational inference is that the parties themselves intended to determine if an arbitral dispute existed, with the assistance of the courts if necessary. In sum, we find that this arbitration clause gave the arbitrator authority to determine only the “fair market value” of any CCFL shares that Davis was transferring, voluntarily or pursuant to a contractual obligation, to the Company. Finally, appellees argue that as Davis himself raised the question of arbitrability in the arbitration proceeding, he thereby waived his right later to object to the arbitrator’s assumption of jurisdiction. Brief for Appellees at 10-11. Although we are mindful of the policy favoring submission of disputes to arbitration, we cannot accept the appellees’ waiver argument where what is at issue is the jurisdiction of the arbitrator. Davis did in this case raise the arbitrability question; he did so, however, with full reservation of his right to have the arbitrator’s determination subjected to judicial review. The factual context of the case at bar is quite similar in" }, { "docid": "12680489", "title": "", "text": "of law, and a reviewing court is obligated to make its own determination of the issue. Mobil Oil Corp. v. Local 8-766, 600 F.2d 322, 324-25 (1st Cir.1979). The court’s decision may, of course, be informed by the arbitrator’s resolution of the arbitra-bility question, id. at 325, and ... where the scope of arbitration is “fairly debatable” or “reasonably in doubt,” the arbitrator’s assumption of jurisdiction should be upheld.... Butler Products Co. v. Unistrut Corp., 367 F.2d 733, 736 (7th Cir.1966). Neither arbitrators nor courts, however, have the prerogative to redraft an arbitration clause to require parties to arbitrate matters that they did not initially agree to arbitrate. Far-kar Co. v. R.A. Hanson DISC, Ltd., 583 F.2d 68, 72 (2d Cir.1978). Davis v. Chevy Chase Fin., Ltd., 667 F.2d 160, 167 (D.C.Cir.1981). We thus inquire as a threshold matter whether a claim that arbitrators have exceeded their powers attacks the “arbitrability” of a particular matter, or merely the consistency of an award with the terms of a contract on a matter that is properly arbitrable. Upon concluding that the matter does concern “arbitrability,” a court should show less deference to the arbitration panel’s determination of its own “jurisdiction” than it does in the typical “draws its essence” analysis. In fact, absent “clear and unmistakable” evidence that contracting parties intended an arbitrator (rather than a court) to resolve questions of arbitrability, courts “ ‘should independently decide whether an arbitration panel has jurisdiction over the merits of any particular dispute.’ ” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 941, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (quoting Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1509 (3d. Cir.1994)). The Supreme Court has thus distinguished the question of “who (primarily) should decide arbitrability” from “tuhether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement.” Id. at 944-45, 115 S.Ct. 1920 (quotations omitted). The de fault answer to the first question is that questions of arbitrability are the province of courts, not arbitrators. But when courts assess arbitrability (the second" }, { "docid": "9801150", "title": "", "text": "Marc Rich & Co., 579 F.2d 691, 703 (2d Cir. 1978). That provision does not, it must be stressed, confer on courts a general equitable power to substitute a judicial resolution of a dispute for an arbitral one; rather, where the interpretation of a contract is at issue, “[i]t is the arbitrator’s construction which was bargained for,” and not that of the courts. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). Arbitration is, however, a matter of contract, and the contours of the arbitrator’s authority in a given case are determined by reference to the arbitral agreement. Parties to such an agreement cannot be required to submit to arbitration any matter that they did not agree would be subject to that manner of dispute resolution. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). A party who consents to the inclusion in a contract of a limited arbitration clause does not thereby waive his right to a judicial hearing on the merits of a dispute not encompassed within the ambit of the clause. In sum, the genesis of arbitral authority is the contract, and arbitrators are permitted to decide only those issues that lie within the contractual mandate. By necessary implication, an arbitral award regarding a matter not within the scope of the governing arbitration clause is one made in excess of authority, and a court is precluded from giving effect to such an award. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361; J. P. Greathouse Steel Erectors, Inc. v. Blount Brothers Construction Co., 374 F.2d 324 (D.C.Cir.), cert. denied, 389 U.S. 847-48, 88 S.Ct. 64, 19 L.Ed.2d 116 (1967). We turn now to the arbitration provision in the Agreement between Davis and CCFL. The only reference to arbitration is contained in Paragraph 4, which is headed “Disposition of Shares after Five Years.” Under subparagraph a, if a sale between Davis and CCFL is to occur, the price is to be" }, { "docid": "13589405", "title": "", "text": "court granted Local 8-831’s motion for summary judgment, but denied its request for costs and attorneys’ fees. Both parties appeal. II. Mobil argues that: (1) the award should be vacated because the- arbitrator exceeded the scope of his authority as defined by the collective bargaining agreement and by the issue submitted to him by the parties; and (2) the arbitrator dispensed his own brand of industrial justice in violation of the agreement. Local 8-831 argues that the award was rationally derived from the collective bargaining agreement and thus should be enforced. A. We first consider whether we should defer to an arbitrator’s definition of the submitted issue. Federal courts do not ordinarily review de novo the merits of an arbitration award where the parties have agreed to be bound by an arbitrator’s decision. See United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 567-68, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). There are, however, limitations to the judicial deference given an arbitrator’s decision. An arbitrator’s award must draw its essence from the collective bargaining agreement, and an arbitrator must not exceed his authority and dispense his own brand of industrial justice. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). This court has emphasized that federal court review of an arbitrator’s award is extremely narrow, however, and if the arbitrator’s “interpretation [of the meaning of the collective bargaining agreement] can in any rational way be derived from the agreement,” courts must enforce the award. Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969). The scope of an arbitrator’s authority is limited to the issue that the parties submit for him to decide. See, e.g., Textile Workers Union, Local 1386 v. American Thread Co., 291 F.2d 894, 896 (4th Cir. 1961). That rule, however, does not indicate the standard by which federal courts should review the arbitrator’s determination of his authority as defined by the submitted issue. There are several reasons why we believe that the deference that is accorded to an arbitrator’s interpretation" }, { "docid": "23199831", "title": "", "text": "activities.” Holly’s appeal presents the usual argument of parties seeking to invalidate adverse arbitration awards. The Company insists that, under the teachings of the “Trilogy”, the question of whether a particular grievance is arbitrable requires less judicial scrutiny than the question of whether an award once rendered is enforceable. Arguing that the arbitrator exceeded his powers, the appellant relies principally on United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. at 597, 80 S.Ct. at 1361. It is well established that arbitration is a matter of contract and that arbitration provisions are construed with great liberality. See, e.g. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 Sup.Ct. 1347, 4 L.Ed.2d 1409 (1960). Moreover, Holly is quite correct in its argument that simply because a court would compel arbitration in a particular dispute does not necessarily mean that it would approve of everything or anything which the arbitrator might decide in resolving the dispute. See Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966); International Ass’n of Machinists AFL-CIO v. Hayes Corp., 296 F.2d 238 (5th Cir. 1961), rehearing denied, 316 F.2d 90 (1963). However, if the scope of judicial review in post-award proceedings were as broad as the appellant suggests, we would be tempted to slip into the practice, so prevalent before the “Trilogy”, of “deciding the merits in the guise of adjudicating the court-reserved issue of the scope * * * of the agreement to arbitrate.” United States Gypsum Co. v. United Steelworkers, 384 F.2d 38, 49 (5th Cir. 1967), cert. denied, 389" }, { "docid": "2572042", "title": "", "text": "and that of the facilitation of commercial intercourse____ It is particularly necessary to accord the ‘narrowest of readings’ to the excess-of-authority provision of Section 10(d). That provision does not, it must be stressed, confer on courts a general equitable power to substitute a judicial resolution of a dispute for an arbitral one____ Davis v. Chevy Chase Financial, Ltd., 667 F.2d at 164-165. Of course, where the parties expressly exclude certain claims or issues from their agreement to arbitrate, a certain amount of repetitiveness and the attendant failure to promote judicial economy may have to be tolerated. Id. But otherwise, the principles of arbitral flexibility, judicial deference to an arbitrator’s superior knowledge of a given business, and extreme skepticism of- judicial intrusion into the disputes parties have agreed to arbitrate all militate in favor of the simpler, more efficient and less costly option of allowing the arbitrator to handle “any and all disputes that arise under the agreement,” including claims for punitive damages. See United Steelworkers v. American Mfg. Co., 363 U.S. at 567, 80 S.Ct. at 1346; Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. at 24-25, 103 S.Ct. at 941-942. See generally Southland Corp. v. Keating, — U.S. —, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). CONCLUSION It may be, as the defendant belatedly claims, that the informalities and lack of judicial review attendant to arbitration render that method of dispute resolution less desirable than a full judicial trial when it comes to the airing of claims for punitive damages. But having chosen arbitration as the method of resolution of “all claims, disputes and other matters ... arising out of or relating to” its agreement with Willoughby Roofing, and having vested the arbitrators with authority to grant “any remedy or relief" }, { "docid": "8663410", "title": "", "text": "seeking enforcement of the awards. The District Court’s judgment of enforcement was appealed to this Court. There is little dispute as to the applicable law. Both parties seem to agree that the courts do not have jurisdiction to review the merits of the underlying dispute. If the arbitrator has authority to act, his decision will not be questioned by the courts. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The only point for us to decide is whether the arbitrator had authority to grant the awards in question. The authority of an arbitrator springs from the agreement between the parties, and it is upon the terms of this agreement that the award must be based. The arbitrator is not free to “dispense his own brand of industrial justice.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). However, in making the determination of whether an arbitrator has exceeded his authority the agreement must be broadly construed with all doubts being resolved in favor of his authority. Bonnot v. Congress of Independent Unions, Local #14, 331 F.2d 355 (8 Cir. 1964). As stated in United Steelworkers of America, etc. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L. Ed.2d 1409 (1960): “An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Applying this philosophy to the facts of the case at hand we see that hours, wages, and overtime are dealt with in the collective bargaining agreement. The Agreement provides that “should any dispute arise concerning the interpretation or application of this Agreement * * * the dispute or grievance shall be submitted to arbitration.” Thus on the face of the Agreement, these grievances would seem to be a proper subject for arbitration under the doctrine enunciated in United" }, { "docid": "16267040", "title": "", "text": "words, “ ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” AT & T Techs., 475 U.S. at 650, 106 S.Ct. 1415 (citation omitted); see also Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers Int’l Union, 600 F.2d 322, 328 (1st Cir.1979) (“ ‘In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where ... the arbitration clause [is] quite broad.’ ” (quoting United Steelworkers of Amer. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960))). The middle two principles pose no difficulty here. Both parties agree that the arbitrability question is for the court and that the merits do not play a role in that determination. The parties pit the first and fourth principles against each other, however — with the Municipality claiming that the termination issue is outside the contractual arbitration provision and COFECC maintaining that, in the absence of its explicit exclusion, termination falls within the clause. Like the district court, we conclude that COFECC has the better argument. Our .review of the court’s decision is de novo. See InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.2003) We first dispense with the Municipality’s argument that this case implicates Supreme Court precedent on the arbitrability of post-termination disputes. See, e.g., Litton Fin. Printing Div. v. N.L.R.B., 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991). The dispute here is not over matters that arose following the acknowledged end of the parties’ agreement, but the issue is whether termination has, in fact, properly occurred. Post-termination case law is simply inapposite in this setting. Our focus, rather, must be on whether the arbitration provision in Deed of Trust No. 5 is reasonably construed to embrace disputes over the termination of the trustee relationship. The entire arbitration provision, section" }, { "docid": "7010210", "title": "", "text": "what the union considers aggression. Unfortunately, no arbitrator can tell the Soviets to withdraw from Afghanistan. The Florida district court’s judgment ordered the union to process any grievance over the shipment of cargo to the Soviet Union aboard the three vessels in accordance with the procedure contained in the arbitration clause of the contract. But an order to compel arbitration may issue only if the dispute is arbitrable. Arbitrability is a question for the court to pass on in the first instance. Mobile Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers, 600 F.2d 322, 324 (1st Cir. 1979); Local Union No. 787, Electrical, Radio & Machine Workers v. Collins Radio Co., 317 F.2d 214, 216 (5th Cir. 1963). While the question whether the strike itself violated the parties’ agreement is arbitrable, the underlying dispute between the ILA and the Soviet Union is not. To the extent that the Florida judgment compels the parties to submit the former question to arbitration, it is affirmed; to the extent it demands arbitration of the underlying dispute it goes beyond the court’s power and is vacated. The union suggests that the New Orleans arbitrators went beyond their authority. Judicial deference to arbitration does not, of course, grant carte blanche approval to any decision an arbitrator might make. Machinists, Local 2003 v. Hayes Corp., 296 F.2d 238, 243 (5th Cir. 1961), aff'd on rehearing, 316 F.2d 90 (5th Cir. 1963). The arbitrator’s authority is circumscribed by the arbitration agreement, and he can bind the parties only on issues that they have agreed to submit to him. Whether an arbitrator has exceeded these bounds is an issue for judicial resolution. Torrington Co. v. Metal Products Workers, Local 1645, 862 F.2d 677, 680 (2nd Cir. 1966). The award is not, however, tested by judicial review of the legal principles applicable or the application of some sort of clearly erroneous test to the findings of the fact. The award need only draw its essence from the collective bargaining agreement. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4" }, { "docid": "6333", "title": "", "text": "to arbitration awards. See, e.g., Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1352-53. In this case it is enough to sustain the award that the arbitrator, permissibly drawing on the sources just mentioned as well as on the explicit provisions of the contract itself, “purport[ed] to be interpreting the contract” in rendering his final decision. Utility Workers Union of America, Local 246 v. NLRB, 39 F.3d 1210, 1216 (D.C.Cir.1994). The district court erred in concluding that the arbitrator’s final remedy exceeded the scope of the issues presented to him for arbitration and did not draw its essence from the collective bargaining agreement. Accordingly, the decision of the district court is reversed. So ordered. . This question—the scope of the submission to the arbitrator—should not be confused with the question of arbitrability—whether the employer ánd the union agreed in the collective bargaining agreement to put a particular issue to arbitration. The latter question is reviewed by a federal court de novo. See, e.g., Williams v. E.F. Hutton & Co., 753 F.2d 117, 119 (D.C.Cir.1985); Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 166-67 (D.C.Cir.1981). The former, as we have just indicated, is not. . Counsel for the Hotel acknowledged that the submission “was an oral submission to the arbitrator which is set forth in his opinion.” When the Court asked whether this meant that \"the submission” could only be defined by reference to \"the arbitrator's definition of the grievance and the issue,\" counsel answered, \"That's correct.” . The Court: “Where is it, in all these documents, that you say to the arbitrator, 'Hey, you can’t arbitrate the abolishment of the classification’?” Counsel: \"We haven't set that out.” The Court: \"Was there some argument ... in the arbitration where you said to the arbitrator ..., 'You're not understanding this correctly, that's not before you'?” Counsel: \"No Your Honon” . Counsel for Local 25 stated that the \"letter ... is not regarded as a jurisdictional type of document,” that it \"was sent to the employer to initiate the proceedings,” and that \"there is absolutely nothing -in the parties’ contract" }, { "docid": "9801155", "title": "", "text": "a case must be affirmed if it “draws its essence” from the governing agreement. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. Although various tests have been employed in implementation of this broad standard, it is apparent that the arbitrator’s award should not be upset in such a case if it represents a plausible interpretation of the contract. Federated Employees of Nevada, Inc. v. Teamsters Local No. 631, 600 F.2d 1263, 1264 (9th Cir. 1979). Where, however, a party to an arbitration proceeding challenges the arbitrator’s authority to decide a particular issue, the function of a reviewing court is distinctly different. The threshold question of arbitrability is one of law, and a reviewing court is obligated to make its own determination of the issue. Mobil Oil Corp. v. Local 8-766, 600 F.2d 322, 324-25 (1st Cir. 1979). The court’s decision may, of course, be informed by the arbitrator’s resolution of the arbitrability question, id. at 325, and we agree with appellees that, where the scope of arbitration is “fairly debatable” or “reasonably in doubt,” the arbitrator’s assumption of jurisdiction should be upheld. Brief for Appellees at 10, quoting Butler Products Co. v. Unistrut Corp., 367 F.2d 733, 736 (7th Cir. 1966). Neither arbitrators nor courts, however, have the prerogative to redraft an arbitration clause to require parties to arbitrate matters that they did not initially agree to arbitrate. Farkar Co. v. R. A. Hanson DISC, Ltd., 583 F.2d 68, 72 (2d Cir. 1978). We therefore reject the proposition that the inclusion of a limited arbitration clause in a contract empowers an arbitrator to make largely nonreviewable decisions regarding his jurisdiction. To hold otherwise through endorsement of appellees’ conception of our reviewing function would run the unacceptable risk of denying parties their right to a judicial forum to resolve disputes. We reject as well appellees’ contention that, in the absence of express language to the contrary, an agreement to arbitrate an issue carries with it a concomitant power to determine arbitrability with limited judicial review. Brief for Appellees at 11. Where, as here, language is employed that suggests a" }, { "docid": "5417192", "title": "", "text": "Davis v. Chevy Chase Financial Ltd., 667 F.2d 160 (D.C.Cir. 1981); Maidman v. O’Brien, 473 F.Supp. 25 (S.D.N.Y.1979); Milos v. Spector Freight Sys., Inc., 464 F.Supp. 754 (M.D.N.C.1979); Fur Dressers Union Local 2F v. DeGeorge, 462 F.Supp. 890 (M.D.Pa.1978); Marshall v. Coach House Restaurant, Inc., 457 F.Supp. 946 (S.D.N.Y.1978); National Benefit Fund v. Presbyterian Hosp., 448 F.Supp. 136 (S.D.N.Y.1978). However, these cases are different from the present one in that an adverse arbitration decision became final, and the grievant sought to start anew in federal court by seeking readjudication of the same claim in the face of the bar of the final decision in the grievance procedure. Much different interests are affected when a party seeks injunctive relief in federal court on an issue which may properly be the subject of arbitration. While a party cannot be required to submit to arbitration any dispute which he has not agreed to so submit, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), this policy must be considered in conjunction with the strong Congressional declaration favoring settlement of labor disputes by arbitration. [T]he judicial inquiry under § 301 must be strictly confined to the question of whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. Id. at 582-83, 80 S.Ct. at 1352-53. (emphasis added). Guided by these principles, the Court must necessarily turn to the arbitration provisions of the Agreement of 1981 between these parties. First, the Court notes that the arbitration clause, Article XXIII, Section (c), is broadly written. Should differences arise between the Mine Workers and an Employer as to the meaning and application of the provisions of this Agreement, or should differences arise about matters not specifically mentioned in this Agreement, or should" }, { "docid": "22464464", "title": "", "text": "in this regard. A. “We begin by recognizing that where parties to a collective bargaining agreement have provided that an arbitrator’s award shall be final and binding, the award is generally non-reviewable by a court.” Trailways Lines v. Trail-ways, Inc. Joint Council, 807 F.2d 1416, 1420 (8th Cir.1986). “As long as the arbitrator's award ‘draws its essence from the collective bargaining agreement,’ and is not merely ‘his own brand of industrial justice,' the award is legitimate.” United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 36, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987) (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (I960)). This deference means that “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Misco, 484 U.S. at 38, 108 S.Ct. at 371. While our review of an arbitration award is narrowly circumscribed, this judicial deference “does not grant carte blanche approval to any decision an arbitrator might make.” Piggly Wiggly Operators’ Whse. v. Piggly Wiggly Operators’ Whse. Indep. Truck Drivers Union, Local No. 1, 611 F.2d 580, 583 (5th Cir.1980). Rather, where “a court concludes that the arbitrator did not stay within the bounds of his authority, this principle of deference inevitably gives way ... to the greater principle that an award not drawing its essence from the agreement is not entitled to judicial enforcement.” Centralab v. Local No. 816, Int’l Union of Elec. Workers, 827 F.2d 1210, 1217 (8th Cir.1987). Such an award must be vacated because “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); see also Franklin Elec. Co. v. International Union, UAW, 886 F.2d 188, 190-91 (8th Cir.1989). While the issue of whether the arbitrator exceeded" }, { "docid": "6278966", "title": "", "text": "the italicized sentence is that the district court misunderstood its duty to decide independently the question of arbitrability and erroneously deferred to the arbitrator’s determination that the subcontracting dispute was arbitrable. Its citation to page 599 of United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), makes it evident that the court blended the issue of arbitrability with the deference due the arbitrator’s interpretation of the contract. In Enterprise Wheel, the Court stated at 599, 80 S.Ct. at 1362: As we there emphasized [referring to United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 [80 S.Ct. 1343, 4 L.Ed.2d 1403] (I960)], the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. This, however, referred only to the second step of the court’s review process. The first step is a determination of the arbitra-bility of the dispute. While the court may refer to an arbitrator’s discussion on arbi-trability in order to aid its determination, F & M Schaeffer Brewing Co. v. Local 49, International Union of United Brewery Workers, 420 F.2d 854, 856 (2d Cir. 1970); Garlick Funeral Homes, Inc. v. Local 100, Service Employees International Union, 413 F.Supp. 130, 134 (S.D.N.Y.1976), it must make its own independent determination of this threshold issue. There is no language in the court’s opinion indicating that this obligation was met. This, however, does not require a remand. Since arbitration is a matter of contract, Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974), Local 205, UE v. General Electric Co., supra, 233 F.2d at 101, this court can, itself, determine this question of law. In Necchi v. Necchi Sewing Machine Sales Corp., 348 F.2d 693 (2d Cir. 1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15" }, { "docid": "242513", "title": "", "text": "March, 1978 order did not decide the issue of arbitrability and that issue was only presented to the Court by the later motion to vacate the arbitrator’s award. Thus, this Court is faced with reviewing both whether the arbitrator decided his own jurisdiction correctly and whether he decided the merits of the breach of contract (no-strike) issue correctly. This Court is not faced with deciding whether those issues should have been referred to the arbitrator. The scope of the court’s review of decisions of an arbitrator was established by the Supreme Court in United Steelworkers of America v. Enterprise Wheel and Car Co., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960): When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. . . . Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. However, that scope of review does not include the reexamination of the arbitrator’s reasoning: the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. Id., 363 U.S. at 599, 80 S.Ct. at 1362. In construing the Enterprise Wheel decision, this Circuit has consistently followed a policy of deference to the arbitrator. Thus, as the court in Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Workers, 412 F.2d 899, 902-03 (9th Cir. 1969) stated: if the scope of judicial review of post-award" } ]

[ { "docid": "23420543", "title": "", "text": "pen register data constitute reliable information that Canale was a knowing participant in a marijuana distribution network. The CPs account, as corroborated, established probable cause to believe crimes were being committed, and that these crimes were occurring in Canale’s home, satisfying the first and fourth prongs of 18 U.S.C. § 2518(3). The second prong, whether the affidavit establishes probable cause that the wiretap will intercept evidence of crime, is met by the pen register data showing frequent calls between those who the Cl stated were members of the conspiracy, as well as the CPs statement that Canale’s practice was to have his distributors call him before coming to his house to pick up the marijuana. In light of these facts, the affidavit easily established that it was more likely than not that evidence of the conspiracy would be obtained by intercepting calls on the telephone at Canale’s residence. The affidavit also satisfied the requirement that it establish that other investigative techniques have been tried and failed or appear too dangerous or unlikely to succeed. The affidavit cited the rural location of the house and the presence of dogs on the property as making surveillance difficult. It also recited that the Cl had not been able to determine the source of supply and method of delivery of marijuana to Canale. Finally, the affidavit stated that the government did not think that it could infiltrate the organization with one or more undercover agents. In sum, we find ample support for Judge Cholakis’s April 8, 1991 authorization to intercept wire communications at Canale’s home. It was error for Judge Cholakis to suppress the fruits of the wiretap in his January 23, 1992 order and, accordingly, we reverse. B. The O’Leary Search Warrant Our view of the alleged probable cause to search O’Leary’s home is quite different. The district court concluded that the affidavit in support of that search was insufficient to establish probable cause. We agree. The affidavit stated that the Cl purchased a small quantity of marijuana consisting of four “nickel bags” from O’Leary on March 19, 1991 in her home, that" } ]

[ { "docid": "22649081", "title": "", "text": "§ 1651, and cases cited in its opinion, 444 F. 2d, at 655-656. No attack was made in this Court as to the appropriateness of the writ of mandamus procedure. These exceptions relate to certain activities of communication common carriers and the Federal Communications Commission, and to specified situations where a party to the communication has consented to the interception. Title 18 U. S. C. §2518, subsection (1), reads as follows: “§ 2518. Procedure for interception of wire or oral communications “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to' make such application. Each application shall include the following information: “(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; “(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to jústify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed,' (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (in) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications áre to be intercepted; “(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; “(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause' to believe that additional communications of the same type will occur thereafter;. “(e)" }, { "docid": "5269959", "title": "", "text": "State, or the principal prosecuting attorney of any political subdivision thereof ... may apply” for an order authorizing a wiretap intercep tion. 18 U.S.C. § 2516(2). An application by such “principal prosecuting attorney” must include, inter alia, a “full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be ■issued, including (i) details as to the particular offense ..., (ii) ... a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, [and] (iv) the identity of the persons, if known, committing the offense and whose communications are to be intercepted,” § 2518(l)(b); “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous,” § 2518(l)(e); and a “full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application ...,”§ 2518(l)(e). Based on the information provided by the applicant, the judge must determine whether “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular [crime],” § 2518(3)(a); whether “there is probable cause for belief that particular communications concerning that offense will be obtained through such interception,” § 2518(S)(b); and whether “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” § 2518(3)(c). Arizona Revised Statutes § 13-3010(A) provides: On application of a county attorney, the attorney general or a prosecuting attorney whom a county attorney or the attorney general designates in writing, any justice of the supreme court, judge of the court of appeals or superior court judge may issue an ex parte order for the interception of wire, electronic or oral communications. Under Arizona law, the designated “prosecuting attorney” may provide the “full and complete" }, { "docid": "4939843", "title": "", "text": "title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C.A. §§ 2510-2522 (West 1970 & Supp.1995) [hereinafter “title III”]. To assure the privacy of oral and wire communications, title III establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications. First, a duly-authorized law enforcement officer must obtain approval from the Attorney General of the United States or a specially designated assistant attorney general in order to apply to a federal judge for a wiretap. See 18 U.S.C.A. § 2516(1) (West Supp.1995). Second, once such approval is obtained, the officer must present a written application for a wiretap to the judge. Third, the judge must make certain enumerated findings and issue an ex parte order containing specified elements. See 18 U.S.C.A. § 2518(1), (3)-(4) (West 1970 & Supp.1995). Strict adherence to these procedural steps is a prerequisite to issuance of a wiretap order. United States v. Giordano, 416 U.S. 505, 94 S.Ct 1820, 40 L.Ed.2d 341 (1974); United States v. Kalustian, 529 F.2d 585, 589 (9th Cir.1975). Each written application presented to the judge must include, inter alia: (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed; (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; (iii) a particular description of the type of communications sought to be intercepted; (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ...; [and] (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. 18 U.S.CA § 2518(1)(b)-(c) (emphasis added). The findings which the judge must make before he can issue an order are specified in section 2518(3)(a)" }, { "docid": "22442362", "title": "", "text": "protective procedures whose absence caused the Court to condemn the electronic surveillance in Berger and Katz. Judicial supervision, emphasized in Katz, is guaranteed. An application for a wiretap must be made to a judge, Section 2518(1), who may require addition-' al testimony or documentary evidence in support of the application, Section 2518 (2), and who must make specific findings of probable cause before authorizing the interception. Section 2518(3). There must be particularity in the application and order. An application must contain a “full and complete statement of the facts relied upon by the applicant to justify his belief” that an order should issue. Section 2518(1) (b). Such statement must include details of the particular offense suspected, a particular description of the facilities from which communications are to be intercepted, a particular description of the type of communications sought to be intercepted, and the identity of the person or persons suspected. Section 2518(1) (b) (i)-(iv). Section 2518(4) likewise provides that the order shall specify, among other things, all of the above details. Tortorello argues that one deficiency in particular found in the statute involved in Berger — that the permissible intrusion was so long (60 days) as to amount to a series of searches — also is present in the Act here involved. We disagree. Section 2518(1)(d) requires the application to specify the period of time for which the intercept is required; and, if necessary, facts sufficient to justify continued interception after the particularly described type of communication has been first obtained. Authorization may be no longer than necessary to achieve the objective and in no event longer than 30 days. Section 2518(5). The order must specify the time period for which the intercept is authorized and whether it will automatically terminate when the described communication is first obtained. Section 2518(4) (e). Moreover, Section 2518(5) permits an unlimited number of extensions but only upon a separate showing of probable cause for each extension; and, to obtain an extension, the application must show what has resulted thus far or an explanation of why there have been no results. Section 2518(1)(f). We hold" }, { "docid": "22249716", "title": "", "text": "applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted * * * It The applications in all respects complied. The first application was for an interception at a residence on Kinglet Drive. From affidavits in support of the application it appeared that several informants of proven reliability all had stated that “Billy” Ethridge was dealing in heroin and cocaine out of that residence. The method of operation, as described by informants, was that the buy er would leave money with Ethridge at the Kinglet Drive residence and then be instructed to pick up the narcotics at a second residence. Ethridge would then call the second residence and advise someone there as to what was to be given to the buyer. Statements of informants were corroborated by agents who had participated in controlled purchases of narcotics by the informants. Lending further support was proof that Ethridge had a prior criminal record for narcotics involvement. The second application, for an interception at a residence on Blue Heights Drive, was accompanied by excerpts from the interception at Kinglet Drive. Analysis of the phone calls corroborated the fact that the Kinglet Drive residence was being used for transaction of narcotics business and that a new outlet for narcotics distribution had been established at Blue Heights Drive by Sandra Gayle Woodrow and Ethridge. The third application sought to extend the original interception at Kinglet Drive by ten days. A new showing of probable cause was made, including excerpts from interceptions at the Kinglet and Blue Heights Drive addresses. (c) “[A] full and complete statement as to whether or not other investigative procedures have been tried and failed or why" }, { "docid": "8282240", "title": "", "text": "particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of . the person, if known, committing the offense whose communications are to be intercepted. Section 2518(3) further requires that before any authorization of interception can be issued, the court must find the allegations of particularized fact supported by probable cause, including findings that: (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for the belief that particular communications concerning that offense will be obtained through such interception ; -» * ■» * * [and] (d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person. Finally, Section 2518(4) requires that each such particularized finding be embodied in the warrant so as to circumscribe the scope of the resulting search and seizure. Clearly, therefore, defendants’ objections that Title III does not provide for the traditional requirements of adequate particularity as a precondition to a valid search under the Fourth Amendment are not justified. Significantly, the New York statute condemned by the Supreme Court in Berger was totally lacking in fulfilling the requirements of particularization either in the warrant application or in the issued warrant. Title III was obviously intended to remedy this flaw. If the court determines the application sufficient and authorizes surveillance in conformance with statutory requirements, it may still retain control of subsequent events. Section 2518(6) allows the authorizing court to require progress reports at any interval it deems appropriate. Upon conclusion of the" }, { "docid": "22442381", "title": "", "text": "associations and areas of legal and illegal operations, in the hope of obtaining evidence of some unspecified crime. The Act prohibits such “strategic intelligence surveillance” by requiring, among other measures, that the application identify the particular offense suspected and the particular conversations anticipated. Section 2518(1) (b) requires that the application set forth a full and complete statement of facts “as to the particular offense that has been, is being, or is about to be committed” and “a particular description of the type of communications sought to be intercepted”. -Each order authorizing an interception is required to set forth “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates”. Section 2518(4) (c). These provisions undoubtedly were prompted by the Supreme Court’s decisions in Berger v. New York, supra, and Katz v. United States, supra. See S. Rep. 1097, 90th Cong., 2d Sess. 13 (1968), quoted in 2 U.S.Code Cong. & Adm.News 2112, 2190 (1968). A difficult question is the degree of particularity required by the Fourth Amendment and Title III. Tortorello contends that the intrusion can be no less precise and discriminate than that approved in Osborn v. United States, supra. As stated above, the Act clearly permits a surveillance broader in scope than that in Osborn. But the exact boundaries of a constitutionally valid electronic surveillance thus far have not been delineated. Some guidance, however, has been provided by decisions concerning the particularity of a wiretap or eavesdrop authorized under Title III. In United States v. Scott, 331 F.Supp. 233 (D.D.C. 1971), the affidavits recited that certain known and unknown persons were involved in a “narcotics wholesale trafficking” conspiracy. Specific offenses were alleged to have been committed by certain members of the conspiracy which involved narcotics wholesaling. The type of communications sought to be intercepted were conversations between persons in certain specified cities and states which would reveal the details of a scheme to smuggle narcotics into the United States, to transport them to the Washington, D.C. area, and to distribute them there. The order found probable" }, { "docid": "13280602", "title": "", "text": "United States Attorney for the District of Columbia or any of his designated assistants. See 23 D.C.Code §§ 541(11) & 546 (1973) and note 2 supra. . United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). . Cf. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . 18 U.S.C. § 2518(1) (b) (1970). 23 D.C. Code § 547 (a) (2) imposes the same requirement. . 18 U.S.C. § 2518(1) (e). 23 D.C.Code § 547 (a) (3) also imposes this requirement. . 18 U.S.C. § 2518(1) provides in full: (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such applica tion. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application ; (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ; (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been" }, { "docid": "1209902", "title": "", "text": "wiretap order in this case must stand or fall on the contents of the application and affidavit in support thereof. United States v. Roth, 391 F.2d 507 (7th Cir., 1967). The main thrust of defendants’ argument is that the application fails to provide the information required by Section 2518(1) (b) and (c) which provide as follows: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: ” * * * “(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which the place where the communication is to be intercepted, (iii) a particular description of the type of communication sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; “(e) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;”. With respect to subsection (b) (i) “details as to the particular offense that has been, is being, or is about to be committed,” Paragraph 1 of Agent Cooper’s affidavit alleges an investigation by the Bureau of Narcotics and Dangerous Drugs and the Metropolitan Police Department of “narcotic wholesale trafficking activities” of certain known and unknown persons in a “conspiracy”. Paragraphs 5, 6, 7, 8, 9, 10 and 10a alleged particular facts of continuing narcotics offenses involving some of the alleged conspirators. The affidavit speaks of an employee of “Al”, one of the alleged conspirators, as selling several hundred dollars worth of heroin per pay; of members" }, { "docid": "1209897", "title": "", "text": "such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.” It is clear that these statutory provisions require that a neutral and detached authority be interposed between the police and the public and that authority is required to make certain specific findings of probable cause before authorizing the interception. The first part of the Berger outline as to particularity is met by Section 2518(1) (b), Title 18, which requires that the application contain a “full and complete statement of the facts relied upon by the applicant to justify his belief that a [wiretap] order should be issued.” That statement must include: “(i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, [and] (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ; Section 2518(4) similarly provides that the order shall specify: “(a) the identity of the person, if known, whose communications are to be intercepted; “(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; “(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; “(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; It is thus apparent that the first requirement of Berger has been incorporated in" }, { "docid": "22395576", "title": "", "text": "intercept, failure to do so in the circumstances here presented did not warrant suppression under § 2518 (10) (a) (i). Nor was suppression justified with respect to respondents Merlo and Lauer simply because the Government inadvertently omitted their names from the comprehensive list of all identifiable persons whose conversations had been overheard. We hold that this is the correct result under the provisions of Title III, but we re emphasize the suggestion we made in United States v. Chavez, that “strict adherence by the Government to the provisions of Title III would nonetheless be more in keeping with the responsibilities Congress has imposed upon it when authority to engage in wiretapping or electronic surveillance is sought.” 416 U. S., at 580. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. The wiretap application procedure is set forth at 18 U. S. C. § 2518 (1), which provides: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: “(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; “ (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; “(c) a full and complete statement as to whether or not other investigative procedures have" }, { "docid": "4939844", "title": "", "text": "(9th Cir.1975). Each written application presented to the judge must include, inter alia: (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed; (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; (iii) a particular description of the type of communications sought to be intercepted; (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ...; [and] (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. 18 U.S.CA § 2518(1)(b)-(c) (emphasis added). The findings which the judge must make before he can issue an order are specified in section 2518(3)(a) through (d). Specifically, on the basis of the facts submitted in the application, the judge must determine that: (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 ...; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and, have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) ... there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person. See 18 U.S.CA § 2518(3)(a)-(d) (emphasis supplied). The underscored language in each of the foregoing statutory quotations embodies a condition for issuance of a wiretap order which" }, { "docid": "13280603", "title": "", "text": "complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ; (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particu-lár description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; (e) 'a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and (f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results. . Section 2518(5) states that “[e]very order and extension thereof shall contain a provision that the authorization to intercept shall be * * * conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter * * See also 23 D.C.Code § 547(g). . Section" }, { "docid": "22956903", "title": "", "text": "cellular phones. Differences in cellular technology, the government says, should compel a broader view of extensions here. We agree with appellants. The Second and Third Circuits have held that a wiretap order authorizing interception at one location or of one phone number is not extended by an order, even if it is part of the same investigation of the same crimes and the same person, authorizing interception at a different location or of a different phone number. See United States v. Ojeda Rios, 875 F.2d 17, 21 (2d Cir.1989), vacated and remanded on other grounds by 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990) (holding “that the term extensions is to be understood in a common sense fashion as encompassing all consecutive continuations of a wiretap order, however designated, where the surveillance involves the same telephone, the same premises, the same crimes, and substantially the same persons”) (internal quotation marks omitted); United States v. Vastola, 915 F.2d 865, 874 (3d Cir.1990) (holding that “a change in the location of an illegal operation will prevent a subsequent order covering the new location from being an extension of a previous order”). These cases rely on the structure of Title III, which ties wiretap authority to specific communications facilities or locations. For instance, the government’s application for authority to intercept communications must include “a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.” 18 U.S.C. § 2518(l)(b)(ii). Similarly, before authorizing interception, the judge must assure that “there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(d). We agree with the Second and Third Circuits and hold that an order is an extension of an earlier order only if it authorizes continued interception of the same location or communications facility specified by the prior order. The government relies on United States v. Principie, 531" }, { "docid": "22413308", "title": "", "text": "residence to conduct an illegal gambling business. The subsequent order of the District Court authorizing wire interceptions also covered Jacobs’ phone. Any communications intercepted over the Jacobs telephone, however, play no role in the issues now before us. Title 18 U. S. C. § 2518 provides in pertinent part: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: “(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a par ticular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; “(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that— “(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; “(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; “(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; “(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be" }, { "docid": "22413307", "title": "", "text": "was in error when it interpreted the phrase “others as yet unknown” so as to exclude conversations involving Minnie Kahn from the purview of the wiretap order. We further hold that neither the language of Judge Campbell’s order nor that of Title III requires the suppression of legally intercepted conversations to which Irving Kahn was not himself a party. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. The affiant, a special agent of the Federal Bureau of Investigation, provided detailed information about Kahn’s alleged gambling activities: This information was derived from the personal observations of three unnamed sources, whose past reliability in gambling investigations was described by the affiant. In addition, the information was corroborated by telephone company records showing calls on Kahn’s telephones to and from a known gambling figure in another State. The Government’s application and the accompanying affidavit also claimed that one Jake Jacobs was using a telephone at his private residence to conduct an illegal gambling business. The subsequent order of the District Court authorizing wire interceptions also covered Jacobs’ phone. Any communications intercepted over the Jacobs telephone, however, play no role in the issues now before us. Title 18 U. S. C. § 2518 provides in pertinent part: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: “(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a par ticular description of the type" }, { "docid": "8282239", "title": "", "text": "Title III fully satisfies the demands of the Fourth Amendment and cases thereunder set out above. For all normal investigative interceptions a rigorous procedure of antecedent justification to the court is a necessary and indispensable precondition of a valid statutory surveillance. The court whose authorization is sought must be presented a lengthy and complete written application, under oath, which sets out in the first instance facts sufficient to show probable cause. Section 2518(2) empowers the court to whom the application is made to require, if it desires, additional evidence in support of the application prior to the determination by the court of the application’s satisfaction of the requirements of probable cause. Necessary to a constitutionally circumscribed interception of communication is the particularized description of the “offense [that] has been or is being committed” and “the type of conversation” sought in the authorizing order. Section 2518(1) (b) clearly states that the warrant application must contain a “full and complete statement of the facts and circumstances relied upon by the applicant”, including: (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of . the person, if known, committing the offense whose communications are to be intercepted. Section 2518(3) further requires that before any authorization of interception can be issued, the court must find the allegations of particularized fact supported by probable cause, including findings that: (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for the belief that particular communications concerning that offense will be obtained through such interception ; -» * ■» * * [and] (d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are" }, { "docid": "12538241", "title": "", "text": "the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators’ belief that such non-wiretap techniques have been or will likely be inadequate. 838 F.2d at 163-64 (quoting United States v. Lambert, 771 F.2d 83, 91 (6th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 598, 88 L.Ed.2d 577 (1985)). Applying the foregoing standards to the facts in the instant case, it is clear that the district court correctly concluded that the statement of necessity in the warrant application was sufficient to satisfy the statutory requirements of 18 U.S.C. §§ 2518(l)(c) and 2518(3)(c). 3. Particularity Defendants’ next claim of error focuses on the statutory requirements em bodied in 18 U.S.C. § 2518(l)(b) which states: (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted. Defendants contend that subsections (b)(i) and (iii) were not met by the government’s application and the accompanying affidavit. In addition, defendants argue that the order issued by Judge Taylor did not meet the requirements of 18 U.S.C. § 2518(4)(c). That section requires the inclusion of “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates” in the interception order. Defendants claim that neither the government’s application nor Judge Taylor’s order were sufficiently particular as to the type of communication and the particular offense involved. Defendants contend that the government’s application and the court’s order were deficient in that they describe the communications to be intercepted in terms" }, { "docid": "5409145", "title": "", "text": "suitable search warrant and so long as the police, in executing that warrant, limit themselves to searching for items which may constitutionally be seized.” . 394 U.S. 165, 175 n. 10, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). See, Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). . In Marron, 275 U.S. at n. 36, 48 S.Ct. 74, supra, the Court held that records of a criminal act found at the site of the arrest could be taken as incident to arrest although they were not described on the face of the search warrant. See, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). . § 2518(1) : Each application shall include * * * (b) a full and complete statement of the facts and circumstances relied upon by the applicant * * * including (i) details as to the particular offense * * (ii) a particular description of the nature and location of the facilities from which * * * the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted ; § 2518(3) : (The judge determines) (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516. * * (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used * * * in connection with * * such offense. * * * . This Court feels that such safeguards demonstrate that the statute requires “the most precise and rigorous standard of probable cause” which Justice Stewart found lacking in the New York prosecution in Berger, 388 U.S. at 69, 87 S.Ct. at 1888. . § 2518(3) (The" }, { "docid": "884884", "title": "", "text": "intended any unlawful invasion of an aggrieved person’s privacy to be sufficient harm in itself to require suppression. Cf. United States v. Giordano, 416 U.S. 505, 524-529, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The order of the district court is affirmed. . 18 U.S.C. § 2518 provides: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (b) a. full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted . . .\" . 18 U.S.C. § 2518(5) provides in pertinent part: “ . . . Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section . . . ” . 18 U.S.C. § 2518(4)(a). . 18 U.S.C. § 2518(10)(a) provides: “Any aggrieved person in any trial . in or before any court ... of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted, wire or oral communication, or evidence derived therefrom, on the grounds that— (i) the communication was unlawfully intercepted; If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.” 18 U.S.C. § 2515 provides: “Whenever any wire or oral communication has been intercepted, no part of the" } ]

[ { "docid": "6988635", "title": "", "text": "379, 100 L.Ed. 373 (1956). As a general rule, pipelines may only change their rates in the context of a formal rate case. Pursuant to Section 4 of the NGA, pipelines are required to file their rates and rate changes with the Commission in tariffs supported by detailed cost information. 15 U.S.C. § 717c(c); 18 C.F.R. § 154.63 (1994); see Consolidated Edison Co. v. F.E.R.C., 958 F.2d 429, 431 (D.C.Cir.1992). In so doing, the pipeline opens up its entire rate structure to scrutiny, see Federal Power Comm’n v. Tennessee Gas Transmission Co., 371 U.S. 145, 152, 83 S.Ct. 211, 215, 9 L.Ed.2d 199 (1962); CIG, 791 F.2d at 807, and, if challenged, it bears the burden of proving that its rate structure is just and reasonable. 15 U.S.C. § 717c(e); see Sea Robin, 795 F.2d at 183. Commission authority under Section 4 is limited to acceptance (in whole or in part) or rejection of the pipeline’s proposed rate; the Commission is not empowered to substitute its own design for the rates proposed by the pipeline. Id.; see Public Serv. Comm’n v. F.E.R.C., 642 F.2d 1335, 1344 (D.C.Cir.1980), cert. denied, 454 U.S. 879, 880, 102 S.Ct. 360, 362, 70 L.Ed.2d 189 (1981). This restriction ensures that rates will be set in the first instance by the pipelines themselves. However, the Commission retains broad remedial authority under Section 4. It may accept the proposed rate conditionally, and suspend the rate for up to five months pending Commission investigation. 15 U.S.C. § 717c(e). If the Commission determines, following such an investigation, that the filed rate is unjust and unreasonable, it may order refunds effective as of the date the proposed rate change became effective. 15 U.S.C. § 717c(e); see Natural Gas Pipeline Co. of Am. v. F.E.R.C., 904 F.2d 1469, 1471 (10th Cir.1990). The D.C.Circuit has termed this refund procedure the “only statutory exception to [the NGA’s general rule] prohibiting retroactive rate changes.” East Tenn. Natural Gas Co. v. F.E.R.C., 863 F.2d 932, 941-42 (D.C.Cir.1988) (Wald, C.J.). This exception, according to the court, “arises in order to accommodate the realities of administrative delay.”" } ]

[ { "docid": "6413632", "title": "", "text": "reversal of the sunset provision is to receive applications from pipelines that accepted their GIC certificates — and eschewed Order No. 500 recoveries — while the sunset provision was in effect. We have no inclination, even if we had the authority, to say that this approach exceeded the Commission’s remedial authority, particularly since agency discretion “is often at its ‘zenith’ when the challenged action relates to the fashioning of remedies.” Towns of Concord v. FERC, 955 F.2d 67, 76 (D.C.Cir.1992) (quoting Niagara Mohawk Power Corp. v. FPC, 379 F.2d 153, 159 (D.C.Cir.1967)); see also Southern California Edison, 805 F.2d at 1071 (relying on Commission’s wide discretion and latitude to order remedy). As we stated in Clearinghouse, 965 F.2d at 1074, “[i]f the FERC were prohibited from ordering re-coupment of losses caused by its error[s] ..., the pipeline’s primary right under the NGA to propose and collect a justified rate would be drastically curtailed.” Moreover, “without such corrective power, pipelines would be substantially and irreparably injured by FERC errors, and judicial review would be powerless to protect them from much of the losses so incurred.” Id. at 1074-75. 2. Notice Predictability is an underlying purpose of both the filed rate doctrine and the rule against retroactive ratemaking. Towns of Concord, 955 F.2d at 75; Public Utilities Comm’n of California v. FERC, 894 F.2d 1872, 1383 (D.C.Cir.1990) (citing Columbia Gas Transmission Co. v. FERC, 831 F.2d 1135, 1141 (D.C.Cir.1987) (“Columbia Gas /”)). These doctrines are designed to allow “purchasers of gas to know the consequences of purchasing decisions they make.” Towns of Concord, 955 F.2d at 75; Transwestem, 897 F.2d at 577 (citations omitted); accord AGD III, 898 F.2d at 810 (Williams, J., concurring). Accordingly, when determining whether a FERC order violates either the filed rate doctrine or the rule against retroactive ratemaking, this court inquires whether, as a practical matter, the purchasers of the gas—such as petitioners here—had sufficient notice that the approved rate was subject to change. “It is not that notice relieves the Commission of the bar on retroactive ratemaking, but that it ‘changes what would be purely retroactive" }, { "docid": "12112576", "title": "", "text": "section 5(a) of the Natural Gas Act, which requires rate changes to be made prospectively only.” Id. at 75 (citation omitted). B FERC posits a number of different theories to overcome the text of § 206(a). FERC suggests that Congress’s 1988 decision to add what is now § 206(b) of the Act supersedes the 1985 Electrical District decision. But § 206(b) applies in cases where the complainant is a purchaser alleging that the rates it paid were too high. That provision permits FERC-ordered refunds “of any amounts paid ... in excess of those which would have been paid under the just and reasonable rate.” 16 U.S.C. § 824e(b) (emphasis added). By contrast, this case involves a complainant seller alleging that the rates it received were too low. In other words, the six cities were not making payments before February 13, 2007, “in excess of ... the just and reasonable rate,” which is the statutory precondition for a § 206(b) refund. Id. (emphasis added). Rather, the six cities were paying rates to energy generators below the just and reasonable rate. And § 206(b) authorizes only retroactive refunds (rate decreases), not retroactive rate increases like those at issue here. Therefore, § 206(b) does not help FERC. FERC also argues that it complied with the rule against retroactive ratemaking that applies in cases arising out of a separate section of the Federal Power Act— § 205. Section 205 creates a procedure for members of the public to file complaints after public utilities file new proposed rate schedules (as required by the filed rate doctrine). See 16 U.S.C. § 824d(d)-(e). Under § 205, the rule against retroactive ratemaking has been interpreted to prohibit FERC from setting rates retroactively before the date that purchasers had sufficient notice of a possible change. The proceedings here, however, began with a complaint filed under § 206. And § 206 involves an entirely different — and stricter — set of procedures than § 205. The § 205 precedents therefore do not justify FERC’s action in this case. See NSTAR, 481 F.3d at 800 (§ 205 case); Consol. Edison Co." }, { "docid": "9860890", "title": "", "text": "§§ 717c and 717d, authorize FERC’s “plenary review of the contracts and rate schedules established by [natural gas] companies.” Colorado Interstate Gas Co. v. FERC, 791 F.2d 803, 806 (10th Cir.1986) (CIG I), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987). Section 5 authorizes FERC, at any time and “upon its own motion” or that of third persons, to hold a hearing on the reasonableness of any rate, practice, or contract of a natural gas company and to “determine the just and reasonable rate, ... practice, or contract to be thereafter observed and in force.” 15 U.S.C. § 717d(a) (emphasis added). As the courts have af firmed, the plain language of this section authorizes FERC to order only prospective changes to the rates or practices of pipeline companies. See Atlantic Refining Co. v. Public Service Comm’n, 360 U.S. 378, 389, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959); United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 341, 76 S.Ct. 373, 379, 100 L.Ed. 373 (1956); CIG I, 791 F.2d at 806. Hearings held pursuant to § 4, on the other hand, are triggered by a natural gas company’s filing of a new rate schedule. Section 4, unlike § 5, provides that FERC may order refunds of any increased rate ultimately held unjust and unreasonable. 15 U.S.C. § 717e(e). Section 4 does not require FERC to order refunds; it merely authorizes FERC in its discretion to order refunds effective as of the date the proposed rate change became effective. Belco Petroleum Corp. v. FERC, 589 F.2d 680, 686 (D.C.Cir.1978); Placid Oil Co. v. Federal Power Comm’n, 483 F.2d 880, 905 (5th Cir.1973), aff'd sub nom. Mobil Oil Corp. v. Federal Power Comm’n, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974). The D.C. Circuit has termed the § 4(e) refund procedure the “only statutory exception to the [Act’s general] rule prohibiting retroactive rate changes.” East Tenn. Nat. Gas Co. v. FERC (East Tennessee), 863 F.2d 932, 941-42 (D.C.Cir.1988) (Wald, C.J.). This exception, according to the court, “arises in order to accommodate" }, { "docid": "16973989", "title": "", "text": "Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: In late 1988 and early 1989, Williams Natural Gas Company, a pipeline, paid $18.7 million to its suppliers under four separate settlement agreements. Williams sought to obtain full recovery of these costs by including them in its purchased gas adjustment (“PGA”) filings. The Federal Energy Regulatory Commission determined, however, that two of the settlements included amounts paid to buy out Williams’s take-or-pay liabilities, and hence that the $9.4 million in costs attributable to these settlements could not be recovered through the PGA mechanism. Williams now challenges the Commission’s ruling on a number of grounds. We hold that FERC properly interpreted the disputed settlements as including both purchased gas and take-or-pay buyout costs, that FERC’s policy of denying PGA recovery for the full amount of such settlements when the contract does not specifically state the portion allocable to purchased gas is consistent with section 601(c) of the Natural Gas Policy Act and Commission precedent, and that FERC’s policy may be applied retroactively to Williams’s settlements. Accordingly, we deny the petitions for review. I. BACKGROUND A. Legal Framework At the core of the present dispute is the difference between two mechanisms through which natural gas pipelines may recover their costs: the PGA procedure and Order No. 500. The Federal Power Commission (“FPC”), FERC’s predecessor, devised the PGA procedure in 1972 “to reduce the administrative burdens of dealing with rapid fluctuations in the prices that natural gas producers were charging pipelines.” Laclede Gas Co. v. FERC, 997 F.2d 936, 938 (D.C.Cir.1993); see Purchased Gas Cost Adjustment Provision in Natural Gas Pipeline Companies’ FPC Gas Tariffs, 47 F.P.C. 1049 (1972). It enables pipelines to alter the rates they charge their customers without having to undergo a full rate proceeding under section 4 of the Natural Gas Act (“NGA”), 15 U.S.C. § 717c (1988). If a PGA clause is included in a pipeline’s tariff, the pipeline must document its purchased gas costs in periodic filings with the Commission. Any changes in these costs may then be passed along in the form of higher" }, { "docid": "19384847", "title": "", "text": "Consumers Group v. FERC, No. 98-1075 (D.C.Cir. Apr.29, 1998). Petitioners argue that FERC violated the APA by failing to adequately support its decisions to approve (1) the twenty-year cap and (2) Tennessee’s use of the NPV method for evaluating meter amendment requests. They argue further that Tennessee did not provide adequate notice under 15 U.S.C. § 717c(d) that its proposal affected meter amendment requests. A. The Twenty-Year Cap The natural gas transportation industry is a natural monopoly; pipelines maintain an economically powerful position in relation to their customers. See, e.g., UDC, 88 F.3d at 1122. Congress sought to address this problem in 1938 by enacting the Natural Gas Act, ch. 556, 52 Stat. 821 (1938) (codified as amended at 15 U.S.C. §§ 717-717(w)) (“NGA”), the “primary aim” of which is “to protect consumers against exploitation at the hands of natural gas companies.” Federal Power Com’n v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 88 L.Ed. 333 (1944); see also Public Sys. v. FERC, 606 F.2d 973, 979 n. 27 (D.C.Cir.1979) (“control of the economic power of utilities that enjoy monopoly status” is the focus of regulation under the NGA and the Federal Power Act). In exercising the authority granted by the NGA to review rate changes proposed by pipelines, FERC must remain attuned to the status of the affected market vis-a-vis monopoly and competition. If the market is not a monopolistic one, market-based prices are presumed to be proper. See Elizabethtown Gas Co. v. FERC, 10 F.3d 866, 870 (D.C.Cir.1993) (“when there is a competitive market the FERC may rely upon market-based prices ... to assure a ‘just and reasonable’ result”). If the market is dominated by one or a few companies, FERC uses devices such as a rate ceiling that compensate for the imbalance in market power. This same concern is present as well when FERC looks at pipeline-shipper contract terms other than price. See UDC, 88 F.3d at 1140 (increased contract length can be a surrogate for bidding over the maximum approved rate); Tejas Power Corp. v. FERC, 908 F.2d 998, 1004 (D.C.Cir.1990) (“[i]n" }, { "docid": "18038094", "title": "", "text": "As the Supreme Court stated in United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103, 113-14, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958), the public utility, “like the seller of an unregulated commodity, has the right ... to change its rates ... [at] will, unless it has undertaken by contract not to do so.” Section 205 (and 206) of the Act “are simply parts of a single statutory scheme under which all rates are established initially by the [public utilities], by contract or otherwise, and all rates are subject to being modified by the Commission upon a finding that they are unlawful.” United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 341, 76 S.Ct. 373, 100 L.Ed. 373 (1956) (emphasis added) (addressing the provisions of the Natural Gas Act parallel to the Federal Power Act). Thus, FERC plays “an essentially passive and reactive” role under section 205. City of Winnfield v. FERC, 744 F.2d 871, 876 (D.C.Cir.1984) (Scalia, J.). Similarly, nothing in section 206 sanctions denying petitioners their right to unilaterally file rate and term changes. Section 206 merely permits the Commission — acting either on its own initiative or after a complaint — to initiate changes to existing utility rates and practices. In order to make any change in an existing rate or practice, FERC must first prove that the existing rates or practices are “unjust, unreasonable, unduly discriminatory or preferential.” 16 U.S.C. § 824e(a); see Alabama Power Co. v. FERC, 993 F.2d 1557, 1569 (D.C.Cir.1993). Then FERC must show that its proposed changes are just and reasonable. Tennessee Gas Pipeline Co. v. FERC, 860 F.2d 446, 454 (D.C.Cir.1988). Nothing in this provision gives FERC the power to deny a utility the right to file changes in the first instance. The courts have repeatedly held that FERC has no power to force public utilities' to file particular rates unless it first finds the existing filed rates unlawful. See Pub. Serv. Comm’n v. FERC, 866 F.2d 487, 488-89 (D.C.Cir.1989) (interpreting parallel'provision of the Natural Gas Act, 15 U.S.C. § 717d)" }, { "docid": "1992604", "title": "", "text": "it is true that the reserved question is not parsed into forward-haul and backhaul components, we agree with the Commission that the issue is ambiguous. Forward-haul and backhaul rates were historically set much differently by the parties, and proper resolution of the reserved question seemingly requires consideration of the two components separately. In light of these factors, we find the Commission’s conclusion reasonable and worthy of deference. As the Commission notes, the difference between the forward-haul and backhaul rates was at the core of the parties’ disagreement. 2. The Commission’s Authority under the NGA The remaining two issues raised by Panhandle — whether the Commission sustained its burden of proof and whether the Commission was authorized to apply the ad justed back-haul rate retroactively — require characterization of FERC’s action in approving a backhaul rate equal to one-half of the approved forward-haul rate. Under the NGA, the allocation of the burden of proof and the propriety of ordering refunds depend on the source of the proposed rate change. See East Tennessee Natural Gas Co. v. FERC, 863 F.2d 932, 937 (D.C.Cir.1988); Tennessee Gas Pipeline Co. v. FERC, 860 F.2d 446, 449 (D.C.Cir.1988). Section 4, which governs the approval or rejection of rates proposed by the pipeline, mandates that the pipeline bear the burden of proof that its proposed rate is just and reasonable and permits refunds in certain narrowly drawn circumstances. See 16 U.S.C. § 717c(e) (1988). Section 5 governs situations in which the Commission imposes rates of its own creation or at the behest of a third party. This section requires FERC to bear the burden of proof that its proffered rate is just and reasonable and bars retroactivity altogether. See 15 U.S.C. § 717d(a) (1988). Panhandle argues that the Commission’s determination of the backhaul rate in the proceedings below ventured beyond the exercise of its § 4 authority and into the realm of § 5. As a result, Panhandle argues, the Commission was required by statute to bear a burden that it did not meet in this instance. The Commission responds by contending that its action fell squarely" }, { "docid": "3796503", "title": "", "text": "Gas Distributors v. FERC, 893 F.2d 349 (D.C.Cir.1989); American Gas Ass’n v. FERC, 888 F.2d 136 (D.C.Cir.1989); Associated Gas Distributors v. FERC, 824 F.2d 981 (D.C.Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1468, 99 L.Ed.2d 698 (1988). To put the present case in perspective, we briefly review the nature of the natural gas market, the reasons why FERC is attempting to foster competition in the market, and the role that § 311 of the Natural Gas Policy Act (“NGPA”) plays in the FERC’s grand design. Natural gas is produced at the “wellhead.” There is today a competitive marketplace in the interstate sale of gas at the wellhead, see 824 F.2d at 994, and there would be little need for regulation at all if the ultimate consumers of gas had ready access to the wellhead marketplace. However, natural gas cannot simply be brought to market in a truck, like produce; it must be transported through pipelines, and the construction of a gas pipeline requires considerable capital expense. Although some (indeed, increasingly many) pipelines face competition for customers from other pipelines, still other pipelines enjoy a monopoly or oligopoly position, because their customers must buy natural gas from them or not at all. The Natural Gas Act (“NGA”), 15 U.S.C. §§ 717-717z (1988), serves to protect consumers of natural gas from the monopoly power of interstate pipelines. 824 F.2d at 995. It gives the FERC regulatory jurisdiction over the transportation and sale of gas in interstate commerce. Section 7 of the NGA, 15 U.S.C. § 717f, prohibits any natural gas company from engaging in transportation or sale of gas subject to the Commission’s jurisdiction unless the Commission has issued a “certificate of public convenience and necessity,” commonly known as a § 7 certificate, authorizing the transaction. The FERC can issue such certificates only after a hearing upon notice to all interested parties. Furthermore, § 4 of the NGA, 15 U.S.C. § 717c, requires all rates and charges for transportation or sale of gas within the FERC’s jurisdiction to be “just and reasonable,” and § 5, 15 U.S.C. § 717d, gives the" }, { "docid": "14674477", "title": "", "text": "the Gulf rate treatment. We therefore reverse the orders challenged by petitioner. I. The Natural Gas Act, 15 U.S.C. § 717 et seq. (1982) (NGA or Act), both empowers FERC to regulate the rates charged by interstate natural gas pipelines, and prescribes how FERC may exercise that power. Sections 4 and 5 of the Act govern Commission superintendence of rates. Each section deals with a different character of agency action; each is responsive to different circumstances, and is subject to different restrictions. The Commission is not free to blend, or pick and choose at will between, its section 4 and 5 authority; FERC must use the appropriate authorization in the appropriate way in order to remain with the bounds Congress has set for the agency. Under section 4 of the NGA, 15 U.S.C. § 717 c, pipelines must file with the Commission all rates and any change they propose in their rates. If the Commission enters upon a hearing concerning the lawfulness of a proposed rate increase, the pipeline bears the burden of proving that the rate sought is just and reasonable. See id. at § 717c(e). Section 4 limits the Commission’s authority to acceptance (in whole or in part) or rejection of the pipeline’s proposed rates; the section does not authorize FERC to substitute rates of its own design for the rates proposed by the pipeline. See Public Service Commission of New York v. FERC, 642 F.2d 1335, 1344 (D.C.Cir.1980) (Transco). This restriction guarantees that rates generally will be set, in the first instance, by the pipelines themselves. The Commission, however, has broad remedial powers under section 4. FERC may suspend the proposed rate for up to five months and if, after a hearing, the Commission decides that the rate was unjust, it may order the pipeline to refund to its customers the excessive portion of the charges collected under the rate. See 15 U.S.C. § 717c(e). Section 5 of the Act, 15 U.S.C. § 717d, empowers the Commission, in certain cir cumstances, to take the initiative in setting rates. The Commission may order a pipeline to change to" }, { "docid": "12112577", "title": "", "text": "just and reasonable rate. And § 206(b) authorizes only retroactive refunds (rate decreases), not retroactive rate increases like those at issue here. Therefore, § 206(b) does not help FERC. FERC also argues that it complied with the rule against retroactive ratemaking that applies in cases arising out of a separate section of the Federal Power Act— § 205. Section 205 creates a procedure for members of the public to file complaints after public utilities file new proposed rate schedules (as required by the filed rate doctrine). See 16 U.S.C. § 824d(d)-(e). Under § 205, the rule against retroactive ratemaking has been interpreted to prohibit FERC from setting rates retroactively before the date that purchasers had sufficient notice of a possible change. The proceedings here, however, began with a complaint filed under § 206. And § 206 involves an entirely different — and stricter — set of procedures than § 205. The § 205 precedents therefore do not justify FERC’s action in this case. See NSTAR, 481 F.3d at 800 (§ 205 case); Consol. Edison Co. of N.Y., Inc. v. FERC, 347 F.3d 964, 969 (D.C.Cir.2004) (§ 205 case); City of Piqua v. FERC, 610 F.2d 950, 954 (D.C.Cir.1979) (§ 205 case); see also Canadian Ass’n of Petroleum Producers v. FERC, 254 F.3d 289, 299 (D.C.Cir.2001) (case involving NGA § 4, which is analogous to FPA § 205); Columbia Gas Transmission Corp. v. FERC, 895 F.2d 791, 795 (D.C.Cir.1990) (also applying NGA § 4). FERC further points to precedents recognizing FERC’s power to remedy its own errors after being reversed in court. See Exxon Co., USA v. FERC, 182 F.3d 30, 47 (D.C.Cir.1999); Pub. Utils. Comm’n v. FERC, 988 F.2d 154, 162 (D.C.Cir.1993) (“This court has previously recognized FERC’s authority to order retroactive rate adjustments when its earlier order disallowing a rate is reversed on appeal.”); Natural Gas Clearinghouse v. FERC, 965 F.2d 1066, 1074-75 (D.C.Cir.1992). But those cases also are not on point: In this case, FERC was not responding to a court decision when it imposed retroactive surcharges. C Petitioners’ counsel nicely summarized this case at oral argument: To" }, { "docid": "6838640", "title": "", "text": "507, 514-21, 68 S.Ct. 190, 193-98, 92 L.Ed. 128 (1947); Illinois Natural Gas Co. v. Central Ill. Pub. Serv. Co., 314 U.S. 498, 504-08, 62 S.Ct. 384, 386-88, 86 L.Ed. 371 (1942); National Ass'n of Regulatory Util. Comm’rs v. FERC, 823 F.2d 1377, 1382-87 (10th Cir.1987). .For an overview of the Commission’s transportation jurisdiction, see generally Louisiana Power & Light, 406 U.S. at 636-40, 92 S.Ct. at 1836-38; United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 89, 87 S.Ct. 265, 269, 17 L.Ed.2d 181 (1966); East Ohio Gas, 338 U.S. at 467-74, 70 S.Ct. at 268-72; Cascade Natural Gas Corp. v. FERC, 955 F.2d 1412, 1415-21 (10th Cir.1992); Michigan Consol. Gas Co. v. FERC, 883 F.2d 117, 121-22 (D.C.Cir.1989). . The LDCs briefly argue that NGA § 1(c), the so-called \"Hinshaw exemption,” deprives the Commission of jurisdiction over their capacity sales to their own end-users. In this regard, they refer us to Congress’ determination in § 1 (c) that certain pipelines tire “matters primarily of local concern and subject to regulation by the several States.” 15 U.S.C. § 717(c). Section 1(c), however, addresses a very specific type of natural gas pipeline, namely those \"interstate pipelines that receive natural gas at their state boundary that is consumed within the state and subject to state commission regulation.” ANR Pipeline Co. v. FERC, 71 F.3d 897, 898 n. 2 (D.C.Cir.1995). Accordingly, we reject the LDCs’ claim, given that the LDCs do not suggest that they fall within that specific class of pipelines. . Our opinion should not be read to either approve or disapprove the Commission’s reading of the Natural Gas Act in this regard. . Accord Texas Eastern Transmission Corp., 51 F.E.R.C, ¶ 61,170 (1990) (\"The Philadelphia Gas Works requests clarification that all the conditions imposed upon [capacity brokering] program participants do not apply to municipalities. Since municipalities are beyond the jurisdiction of this Commission, the Philadelphia Gas Works is correct.”); Northwest Alabama Gas District, 42 F.E.R.C. ¶ 61,371, at 62,086, 1988 WL 391438 (1988) (“It is well settled that we cannot regulate a municipality under the NGA or the" }, { "docid": "2316669", "title": "", "text": "the Commission. Because we find that the Commission has offered a reasonable answer to the question of whether section 4 of the Natural Gas Act authorizes the Commission to suspend a rate more than thirty days after filing but before the rate’s effective date, we reject National’s challenge to the timeliness of the Commission’s suspension order. In light of our recent decision in Public Utilities Commission v. FERC, 894 F.2d 1372 (D.C.Cir.1990), however, we are unable to uphold the Commission’s disposition of National’s deferred tax reserve fund. Instead, we remand that aspect of the case to the Commission so that it may take action consistent with this opinion within thirty days. It is so ordered. . FERC inherited its jurisdiction over these prices from its predecessor, the Federal Power Commission. . However, unless a pipeline reserved the right to charge NGPA prices retroactively, the pipeline can charge such rates only upon the approval of a new tariff. See National Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563, 1566-67, 1572-74 (D.C.Cir.), cert. denied, 484 U.S. 869, 108 S.Ct. 200, 98 L.Ed.2d 151 (1987). .The background and mechanics of the deferred tax reserve funds are discussed more extensively in PUC I, 817 F.2d at 860-61, and in Public Utilities Commission v. FERC, 894 F.2d 1372, 1378-79 (D.C.Cir. 1990). . The Commission did grant rehearing on certain issues not pertinent to this case. See id. at 62,293. . If the Commission takes effective action under section 4, it may suspend a rate for up to five months, and may order the pipeline to refund rates collected after that date should the pipeline ultimately fail to demonstrate that the rate proposed is just and reasonable; otherwise, the Commission must proceed under section 5 of the Natural Gas Act, 15 U.S.C. § 717d (1988), which puts the burden on the Commission to show that a rate is unjust or unreasonable and which authorizes the Commission to set a reasonable rate only prospectively. See generally Sea Robin Pipeline Co. v. FERC, 795 F.2d 182, 183-84 (D.C.Cir.1986). . Under FERC regulations, a pipeline may give up" }, { "docid": "9860891", "title": "", "text": "I, 791 F.2d at 806. Hearings held pursuant to § 4, on the other hand, are triggered by a natural gas company’s filing of a new rate schedule. Section 4, unlike § 5, provides that FERC may order refunds of any increased rate ultimately held unjust and unreasonable. 15 U.S.C. § 717e(e). Section 4 does not require FERC to order refunds; it merely authorizes FERC in its discretion to order refunds effective as of the date the proposed rate change became effective. Belco Petroleum Corp. v. FERC, 589 F.2d 680, 686 (D.C.Cir.1978); Placid Oil Co. v. Federal Power Comm’n, 483 F.2d 880, 905 (5th Cir.1973), aff'd sub nom. Mobil Oil Corp. v. Federal Power Comm’n, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974). The D.C. Circuit has termed the § 4(e) refund procedure the “only statutory exception to the [Act’s general] rule prohibiting retroactive rate changes.” East Tenn. Nat. Gas Co. v. FERC (East Tennessee), 863 F.2d 932, 941-42 (D.C.Cir.1988) (Wald, C.J.). This exception, according to the court, “arises in order to accommodate the realities of administrative delay.” 863 F.2d at 942. Neither NGPL nor FERC cites the provision of the Natural Gas Act that governs FERC’s decision to eliminate CIG’s minimum bill prospectively. However, both address the decision in terms of its reasonableness; thus, we assume both considered it a discretionary action arising under § 4. NGPL faults FERC’s prospective elimination of the bill, first, for its inconsistency with Commission precedent and policy and, second, for the absence of an adequate explanation of the departure from precedent. FERC’s argument in support of prospective elimination is based on the asserted reasonableness of deleting the minimum bill simultaneously with implementing the MFV method. Implicit in both arguments is the assumption that FERC possessed the authority to order retroactive elimination of the minimum bill and thus that § 4 of the Act applies. CIG, as intervenor, contends variously that prospective elimination is consistent with Commission practice and with sound policy, and that the minimum bill can be eliminated only prospectively under § 5 of the NGA and certain court decisions." }, { "docid": "12112578", "title": "", "text": "of N.Y., Inc. v. FERC, 347 F.3d 964, 969 (D.C.Cir.2004) (§ 205 case); City of Piqua v. FERC, 610 F.2d 950, 954 (D.C.Cir.1979) (§ 205 case); see also Canadian Ass’n of Petroleum Producers v. FERC, 254 F.3d 289, 299 (D.C.Cir.2001) (case involving NGA § 4, which is analogous to FPA § 205); Columbia Gas Transmission Corp. v. FERC, 895 F.2d 791, 795 (D.C.Cir.1990) (also applying NGA § 4). FERC further points to precedents recognizing FERC’s power to remedy its own errors after being reversed in court. See Exxon Co., USA v. FERC, 182 F.3d 30, 47 (D.C.Cir.1999); Pub. Utils. Comm’n v. FERC, 988 F.2d 154, 162 (D.C.Cir.1993) (“This court has previously recognized FERC’s authority to order retroactive rate adjustments when its earlier order disallowing a rate is reversed on appeal.”); Natural Gas Clearinghouse v. FERC, 965 F.2d 1066, 1074-75 (D.C.Cir.1992). But those cases also are not on point: In this case, FERC was not responding to a court decision when it imposed retroactive surcharges. C Petitioners’ counsel nicely summarized this case at oral argument: To uphold FERC’s action here, we would have to find “that there’s no difference between the procedural framework of § 205 and the procedural framework of § 206; [] that ‘thereafter’ in § 206(a) really means any time after the filing of a complaint; that the term ‘refund’ in § 206(b) really means refund or increase; that ‘amounts in excess of under § 206(b) really means amounts in excess of or less than; [or] that ‘prospective’ can mean a date many months earlier than the date of the Commission order fixing a rate.” Tr. of Oral Arg. at 25-26. We decline FERC’s invitation to mangle the statute in those myriad ways. In the end, as in the beginning, the plain language of § 206(a) controls. Cf. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”) (internal" }, { "docid": "9898775", "title": "", "text": "Citing our opinion in Wisconsin Gas Co. v. FERC, 770 F.2d 1144, 1166 (D.C.Cir.1986), however, FERC maintains that such findings are sufficient to substantiate its decision to impose the open access requirement. Finally, FERC observes that we rejected these same arguments in AGD. See 824 F.2d at 1008 (citing Wisconsin Gas, 770 F.2d at 1165-68). Again, we must agree with the Commission. In American Public Gas Ass’n v. FPC, we held that the Commission could exercise its authority under NGA § 5(a), the provision parallel to FPA § 206, through rulemaking as well as adjudication. See 567 F.2d 1016, 1064-67 (D.C.Cir.1977); see also Wisconsin Gas, 770 F.2d at 1153 (articulating the American Public Gas holding). Congress subsequently ratified the American Public Gas holding when it enacted the Department of Energy Organization Act, 42 U.S.C. § 7173(c) (1994). See Wisconsin Gas, 770 F.2d at 1153 n. 8 (acknowledging the Act). That statute provides that “the establishment of rates and charges under the Federal Power Act [16 U.S.C. 791a et seq.] or the Natural Gas Act [15 U.S.C. 717 et seq.], may be conducted by rulemaking procedures.” 42 U.S.C. § 7173(c) (brackets in original). By passing a statute adopting the holding of American Public Gas, and explicitly applying that rule to the FPA as well as the NGA, Congress signaled its intent that the hearing requirements of NGA § 5(a) and FPA § 206(a) be interpreted similarly. Interpreting the hearing requirement of NGA § 5(a), we have said that, while the Commission cannot rely solely on “unsupported or abstract allegations,” the agency is also not required to make “specific findings,” so long as the agency’s factual determinations are reasonable. See Wisconsin Gas, 770 F.2d at 1158. In AGD, we applied Wisconsin Gas in holding that the Commission was not required to make specific findings that individual rates charged by individual pipelines were unlawful, or to offer empirical proof for all the propositions upon which its order depended, before promulgating a generic rule to eliminate undue discrimination. See AGD, 824 F.2d at 1008-09. Upon comparison of the order considered in AGD with Order" }, { "docid": "23332420", "title": "", "text": "a determination that the seller lacked market power and could not “erect other barriers to entry.” We noted that “[according to FERC, these conditions assure that the market-based rates charged comply with the FPA’s requirement that rates be just and reasonable.” Id.; see also Snohomish, 384 F.3d at 760-61. We further noted that FERC’s oversight was ongoing, that FERC imposed various reporting requirements on sellers, and that “FERC has clearly stated its belief that these procedures satisfy the filed rate doctrine for market-based rates.” Grays Harbor, 379 F.3d at 651 (quotation marks omitted). We concluded that market-based rates “do not fall outside of the purview” of the Filed Rate Doctrine. Id. Snohomish relied on Grays Harbor in concluding that FERC was “doing enough regulation to justify federal preemption of state laws.” 384 F.3d at 757. Because “the FPA and the [NGA] are ‘substantially identical,’ [and] there is an ‘established practice of citing interchangeably decisions interpreting the pertinent sections of the two statutes,’ ” Grays Harbor, 379 F.3d at 649 n. 8 (quoting Arkla, 453 U.S. at 577 n. 7,101 S.Ct. 2925), the Filed Rate Doctrine analysis in Grays Harbor is also applicable to market-based rates under the NGA. First, federal preemption of state damage claims applies to the natural gas arena as well as to the electricity arena. A challenge to market-based natural gas rates established pursuant to FERC’s blanket market certificate would require a court to reconsider natural gas rates that FERC had already determined to be reasonable. Because Congress preempted the field by giving FERC exclusive jurisdiction over such rates, challenges to such rates are barred by field preemption, as in Grays Harbor. See id. 647-49; see also Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 305, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) (“Congress occupied the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.”). Second, permitting a state court to grant an aggrieved party “a refund” in natural gas rates under FERC jurisdiction would create a conflict with FERC’s authority to approve market-based rates, and thus is similarly preempted by" }, { "docid": "6988633", "title": "", "text": "to “total annual volumes.” The Commission’s interpretation, on the other hand, gives meaning to this clause. We note that the Commission’s interpretation of Section 14.8 is not the only possible construction, nor necessarily even one that a court may have adopted had the issue arisen in the first instance in a judicial proceeding. See Salt Lake City v. Western Area Power Admin., 926 F.2d 974, 978 (10th Cir.1991). It is, however, a rationally based, reasonable construction, and is, therefore, entitled to our deference. II. The Refund Order Having determined that the Commission reasonably interpreted Section 14.8 to require the inclusion of bundled transportation volumes in the FRP calculation, we now must consider whether the Commission properly ordered Northwest to refund the overcharges to its unbundled customers, or whether the order violated the proscription against retroactive ratemaking. A. The Statutory Framework The primary purpose of the Natural Gas Act, 15 U.S.C. §§ 717-717w (“NGA”), is “to protect consumers from exploitation at the hands of natural gas companies.” Colorado Interstate Gas Co. v. F.E.R.C., 791 F.2d 803, 806 (10th Cir.1986) (“CIG ”) (citing Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333 (1944)), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987). In furtherance of this policy, Congress has declared that rates subject to regulation pursuant to the NGA are unlawful unless they are “just and reasonable.” 15 U.S.C. § 717c(a); see Office of Consumers’ Counsel v. F.E.R.C., 783 F.2d 206, 213 (D.C.Cir.1986). The NGA empowers the Federal Energy Regulatory Commission to regulate the rates charged by interstate natural gas pipelines. However, the NGA also prescribes how the Commission may exercise that power. Sea Robin Pipeline Co. v. F.E.R.C., 795 F.2d 182, 183 (D.C.Cir.1986). The Commission’s power is set forth in two sections of the NGA relevant to this case — Section 4(e), which deals with ratemaking, and Section 5(a), which deals with Commission-ordered rate adjustment. 15 U.S.C. §§ 717c(e), 717d(a); see United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 341, 76 S.Ct. 373," }, { "docid": "11479912", "title": "", "text": "(1993) (\"Order No. 636-C”), appeal pending sub nom. United Distribution Cos. v. FERC, No. 92-1485, 1994 WL 315233 (D.C.Cir.). . Section 1(c) of the NGA, 15 U.S.C. § 717(c), known as the Hinshaw Amendment, exempted from FERC regulation intrastate pipelines that receive natural gas at their state boundary that is consumed within the state and subject to state commission regulation. See Interstate Natural Gas Co. v. FPC, 331 U.S. 682, 690-91, 67 S.Ct. 1482, 1487-88, 91 L.Ed. 1742 (1947). These pipelines are known as Hinshaw pipelines. The Hinshaw Amendment overruled FPC v. East Ohio Gas Co., 338 U.S. 464, 70 S.Ct. 266, 94 L.Ed. 268 (1950). See Public Util. Comm’n v. FERC, 900 F.2d 269, 275 n. 4 (D.C.Cir.1990). .Certain Transportation, Sales and Assignments by Pipeline Companies not Subject to Commission Jurisdiction Under Section 1(c) of the Natural Gas Act, [Reg.Preambles 1977-81] F.E.R.C. Stats. & Regs. (CCH) ¶ 30,118, at 30,824, 30,825 (1980) (“Order No. 63”). . Interim Regulations Implementing the Natural Gas Policy Act of 1978, [Reg.Preambles 1977-81] F.E.R.C. Stats. & Regs. (CCH) ¶ 30,026, at 30,-125 (1978); Sales and Transportation of Natural Gas, [Reg.Preambles 1977-81] F.E.R.C. Stats. & Regs. (CCH) ¶ 30,081, at 30,534 (1979) (\"Order No. 46”). . Rates charged by gas companies for the transportation of natural gas have two components: the reservation, or demand, component and the usage, or commodity, component. The reservation component is the amount paid by a customer to allocate a certain quantity of natural gas that it might need each month. The usage component is the amount paid by that customer for each unit of natural gas actually shipped for the relevant period. See Columbia Gas Transmission Corp. v. FERC, 628 F.2d 578, 582 n. 12 (D.C.Cir.1979). . FERC did deny MichCon's request to use state-approved market-based rates for contract storage rates because FERC’s regulations required the use of cost-of-service rates, 18 C.F.R. § 284.1(b) (1995), and MichCon failed to show that the market for the use of storage facilities would impose limitations on the exercise of market power in a similar manner as cost-of-service rates. 68 F.E.R.C. ¶ 61,090, at" }, { "docid": "12112575", "title": "", "text": "the statute establishes for adjusting unlawful rates.” Id. In Transwestern Pipeline Co. v. FERC, 897 F.2d 570 (D.C.Cir.1990), we elaborated on Electrical District and held that FERC can “fix” rates within the meaning of Natural Gas Act § 5 through the announcement of a “rate formula,” so long as purchasers can supply their own inputs to the formula and thereby know the numerical rates. Id. at 578 (internal quotation marks omitted). In arriving at that conclusion, we carefully heeded Electrical District’s analysis of FERC’s retroactive ratemaking powers. In particular, we stated that FERC may not “simply announce some formula and later reveal that the formula was to govern from the date of announcement (as it had done in Electrical District ).” Id. (emphasis in original). Finally, in Towns of Concord, Norwood & Wellesley, Massachusetts v. FERC, we explained that § 206(a) “allows the Commission to fix rates and charges, but only prospectively.” 955 F.2d 67, 72 (D.C.Cir.1992). We proceeded to note that in prior cases, including Transwestem, the Commission had “violated the explicit commands of section 5(a) of the Natural Gas Act, which requires rate changes to be made prospectively only.” Id. at 75 (citation omitted). B FERC posits a number of different theories to overcome the text of § 206(a). FERC suggests that Congress’s 1988 decision to add what is now § 206(b) of the Act supersedes the 1985 Electrical District decision. But § 206(b) applies in cases where the complainant is a purchaser alleging that the rates it paid were too high. That provision permits FERC-ordered refunds “of any amounts paid ... in excess of those which would have been paid under the just and reasonable rate.” 16 U.S.C. § 824e(b) (emphasis added). By contrast, this case involves a complainant seller alleging that the rates it received were too low. In other words, the six cities were not making payments before February 13, 2007, “in excess of ... the just and reasonable rate,” which is the statutory precondition for a § 206(b) refund. Id. (emphasis added). Rather, the six cities were paying rates to energy generators below the" }, { "docid": "1992608", "title": "", "text": "Commission imposed a new rate on the grounds that in those cases, the Commission reached out to alter aspects of the rate structure that the pipeline had not proposed to change. Although there are differences, these cases provide ample support for the conclusion that FERC should bear the burden under § 5 whenever it moves beyond rejection of a proposed rate to the task of redesigning it. See, e.g., Tennessee Gas Pipeline Co. v. FERC, 860 F.2d 446, 454 (D.C.Cir.1988) (quoting with approval an ALJ’s statement to this effect); Sea Robin Pipeline Co. v. FERC, 795 F.2d 182, 187 (D.C.Cir.1986) (reasoning that Commission moves out of § 4 range when approved rate methodology deviates from that proposed by the pipeline). Although we find controlling the methodological distinctions between the proposed and imposed rates so as to mandate compliance with § 5’s strictures, we must also examine the Commission’s principal contention that our precedents allow it to accept proposals “in part.” The Commission argues that under § 4, it may not only approve one prong of a rate proposal and reject another; it may also approve part, but not all, of a single proposed rate. In Sea Robin, we stated that “[s]ection 4 limits the Commission’s authority to acceptance (in whole or in part) or rejection of the pipeline’s proposed rates.... ” 795 F.2d at 183 (emphasis added). Moreover, § 4(e) of the NGA allows for refunds of “the portion of such increased rates or charges by [the Commission’s] decision found not justified.” 15 U.S.C. § 717c(e) (1988) (emphasis added). Some support for the Commission’s proposition thus may be fashioned from snippets of statute and precedent. Of course, our responsibility for construing the NGA requires us to go beyond consideration of mere individual strands, to determine how the various provisions of the Act are interwoven to achieve Congress’ purpose. After careful consideration of the statutory framework, we cannot accept the Commission’s argument that § 4 permits it to approve any rate, no matter how materially different from that proposed by the pipeline, so long as it can be viewed as a" } ]

[ { "docid": "22343533", "title": "", "text": "when legislating pursuant to the plenary powers granted it by the Constitution. See, e. g., United States v. Union Gas Co., 832 F. 2d 1343 (CA3 1987) (case below); In re McVey Trucking, Inc., 812 F. 2d 311 (CA7), cert. denied, 484 U. S. 895 (1987); County of Monroe v. Florida, 678 F. 2d 1124 (CA2 1982), cert. denied, 459 U. S. 1104 (1983); Peel v. Florida Dept, of Transportation, 600 F. 2d 1070 (CA5 1979); Mills Music, Inc. v. Arizona, 591 F. 2d 1278 (CA9 1979). Even if we never before had discussed the specific connection between Congress’ authority under the Commerce Clause and States’ immunity from suit, careful regard for precedent still would mandate the conclusion that Congress has the power to abrogate immunity when exercising its plenary authority to regulate interstate commerce. In Fitzpatrick v. Bitzer, supra, we held that Congress may subject States to suits for money damages in federal court when legislating under § 5 of the Fourteenth Amendment, and further held that Congress had done so in the 1972 Amendments to Title VII of the Civil Rights Act of 1964. Subsequent cases hold firmly to the principle that Congress can override States’ immunity under §5. See, e. g., Dellmuth v. Muth, post, p. 223; Atascadero State Hospital v. Scanlon, 473 U. S., at 238; Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984); Quern v. Jordan, supra. Fitzpatrick’s, rationale is straightforward: “When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority.” 427 U. S., at 456. In so reasoning, we emphasized the “shift in the federal-state balance” occasioned by the Civil War Amendments, id., at 455, and in particular quoted extensively from Ex parte Virginia, 100 U. S. 339 (1880). The following passage from Ex parte Virginia is worth quoting here as well: “Such enforcement [of the prohibitions of the Fourteenth Amendment]" } ]

[ { "docid": "57937", "title": "", "text": "violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any person other than a State, instrumentality of a State, or officer or employee of a State or instrumentality of a State acting in his or her official capacity.... 15 U.S.C. § 1122. This language manifests Congress’ unambiguous intent to abrogate the states’ immunity. Therefore, the TRCA meets the first requirement of Seminole Tribe to find that Congress has abrogated the states’ immunity. b. Valid Exercise of Power The second prong of Seminole Tribe requires that Congress act pursuant to a valid exercise of power. Prior to Seminole Tribe, the Supreme Court had determined that there were only two constitutional bases for Congress validly to abrogate the states’ Eleventh Amendment immunity. First, in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Court found that Congress could act pursuant to section five of the Fourteenth Amendment to abrogate states’ immunity under the Eleventh Amendment. The Court reasoned that Congress had this power because the Fourteenth Amendment “had fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe, at -, 116 S.Ct. at 1125. Second, in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), “a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, el. 3, granted Congress the power to abrogate state sovereign immunity.” Seminole Tribe, at-, 116 S.Ct. at 1125. In Seminole Tribe, the Court was asked to find a third basis of authority for Congress to abrogate the states’ Eleventh Amendment immunity — the Indian Commerce Clause. See U.S. Const. Art. 1, § 8, cl. 3. The Court held that the Indian Commerce Clause did not provide a basis for Congress to exercise that power. In fact, the Court overruled Union Gas by determining that the Commerce Clause itself did not provide a basis for Congress to abrogate the states’" }, { "docid": "23373070", "title": "", "text": "that Congress clearly intended through the Equal Pay Act to abrogate the States’ sovereign immunity from suit. b. Power to Abrogate We must next determine whether the Act was enacted pursuant to a constitutional provision granting Congress the power to abrogate. See Seminole Tribe, — U.S. at —, 116 S.Ct. at 1125. The Seminole Tribe Court noted that it had previously found authority to abrogate state sovereign immunity under only two provisions of the Constitution: § 5 of the Fourteenth Amendment, in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and the Interstate Commerce Clause, in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). Id. However, the Court overruled Union Gas and held that “[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.” Id. at — - —, 116 S.Ct. at 1131-32. Nevertheless, § 5 of the Fourteenth Amendment remains a provision that vests Congress with the power to abrogate Eleventh Amendment immunity. See id. at — - —, 116 S.Ct. at 1125; see also id. at — n. 15, 116 S.Ct. at 1131 n. 15 (criticizing Justice Stevens’ dissent for ignoring the fact that many of the eases he used to support his argument “arose in the context of a statute passed under the Fourteenth Amendment, where Congress’ authority to abrogate is undisputed”). As the Fitzpatrick Court explained, the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment, expanded federal power at the expense of state autonomy, and thereby fundamentally altered the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. 427 U.S. at 453-56, 96 S.Ct. at 2670-71. In Seminole Tribe, the Court reaffirmed this view of § 5. — U.S. at —, 116 S.Ct. at 1128. In Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116, 119 (6th Cir.1978), this Circuit held, in response to a Tenth Amendment challenge, that the extension of the Equal Pay Act to state employees was a" }, { "docid": "22720916", "title": "", "text": "U. S. 202 (1987). Nevertheless, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity. The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be re placed by grant of some other authority. Cf. Atascadero, 473 U. S., at 246-247 (“[T]he mere receipt of federal funds cannot establish that a State has consented to suit in federal court”). Thus our inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, 452-456 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. Id., at 455. We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” See id., at 453 (internal quotation marks omitted). We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment. In only one other case has congressional abrogation of the States’ Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, §8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be “incomplete without the authority to render States liable in damages.” 491 U. S., at 19-20. Justice White added the fifth vote" }, { "docid": "1357742", "title": "", "text": "to abrogate the immunity,” Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985); and second, whether Congress has acted “pursuant to a valid exercise of power.” Ibid. Seminole Tribe, — U.S. at-, 116 S.Ct. at 1123. The Supreme Court agreed that, with the enactment of § 2710(d)(7), Congress had in fact provided an “unmistakably clear” statement of its intent to abrogate. Id. However, the Court also concluded that the abrogation of sovereign immunity was not passed pursuant to a valid exercise of power under the Indian Commerce Clause. In making that determination, the Court stated: ... Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456, 96 S.Ct. 2666, 2669-2671, 49 L.Ed.2d 614 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution____ We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” ... We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment. In only one other case has congressional abrogation of the States’ Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be “incomplete without the authority to render States liable in damages.” ... Justice White added the" }, { "docid": "57938", "title": "", "text": "Fourteenth Amendment to abrogate states’ immunity under the Eleventh Amendment. The Court reasoned that Congress had this power because the Fourteenth Amendment “had fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe, at -, 116 S.Ct. at 1125. Second, in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), “a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, el. 3, granted Congress the power to abrogate state sovereign immunity.” Seminole Tribe, at-, 116 S.Ct. at 1125. In Seminole Tribe, the Court was asked to find a third basis of authority for Congress to abrogate the states’ Eleventh Amendment immunity — the Indian Commerce Clause. See U.S. Const. Art. 1, § 8, cl. 3. The Court held that the Indian Commerce Clause did not provide a basis for Congress to exercise that power. In fact, the Court overruled Union Gas by determining that the Commerce Clause itself did not provide a basis for Congress to abrogate the states’ immunity under the Eleventh Amendment. See Seminole Tribe, at -, 116 S.Ct. at 1128. Thus, since Seminole Tribe section five of the Fourteenth Amendment has been the sole basis for Congress to abrogate the states’ immunity under the Eleventh Amendment. Accordingly, to meet the second prong of the Seminole Tribe test, the TRCA must have been enacted pursuant to this power. 2. The Fourteenth Amendment and the TRCA The legislative history of the TRCA does not delineate conclusively the constitutional basis for its enactment. The only mention of Fourteenth Amendment authority is found in a brief notation in a Senate Report. See S.Rep. No. 102-280, at 8 (1992), reprinted in 1992 U.S.C.C.A.N. 3087,'3094 (stating that the TRCA “is justified under the Commerce Clause and the Fourteenth Amendment.”). Yet this failure to explain fully the constitutional justification for its enactment does not invalidate the TRCA, for Congress is not required to discuss or explain explicitly the constitutional basis for laws that it enacts. See, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct." }, { "docid": "5551768", "title": "", "text": "including suits arising under federal statutes. See, e.g., Doe v. University of Ill., 138 F.3d 653, 656-57 (7th Cir.1998). State sovereign immunity, however, is not absolute: A state may consent to suit in federal court and, under certain circumstances, Congress may abrogate a state’s Eleventh Amendment immunity. Congress may constitutionally abrogate the States’ Eleventh Amendment immunity under a particular statute if it both unequivocally expresses its intent to do so and acts pursuant to a valid exercise of power. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. With respect to the latter inquiry, Seminole Tribe rejected the notion that the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3, confers upon Congress the power to abrogate the States’ Eleventh Amendment immunity. See id. at 71-73, 116 S.Ct. 1114 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”). In so holding, the Court also explicitly overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), in which a plurality of the Court held that the Interstate Commerce Clause, U.S. Const, art. I, § 8, cl. 3, gave Congress the power to abrogate state sover eign immunity. See 517 U.S. at 63-66, 116 S.Ct. 1114. The Court in Seminole Tribe reaffirmed, however, that valid legislation pursuant to § 5 of the Fourteenth Amendment could serve as a basis for abrogating state sovereign immunity. See id. at 59-60, 63-66, 116 S.Ct. 1114 (discussing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)) (“Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment.”). Thus, “[e]ven after Seminole Tribe, ‘the Eleventh Amendment does not insulate the states from suits in federal courts to enforce federal statutes enacted under the authority of the Fourteenth" }, { "docid": "17138859", "title": "", "text": "must have been passed “pursuant to a valid exercise of power.” Seminole Tribe at 1124. And Seminole Tribe goes on to conclude that the Interstate Commerce Clause no longer constitutes the necessary grant of authority to Congress to abrogate state immunity. Id. at 1125-28. A majority of five justices in Seminole Tribe overruled the plurality opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), which seven years earlier upheld a congressional abrogation of sovereign immunity in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq., as amended by the Superfund Amendments and Reau-thorization Act of 1986 (“CERCLA”). In Union Gas, the Court held both that the legislature had clearly stated its intention that states be held hable for cleanup costs under CERCLA, along with private parties; and that the Interstate Commerce Clause authorized Congress to enact a statute to that effect. Union Gas at 5, 109 S.Ct. 2273. Seminole Tribe, which involved a suit against the State of Florida under the federal Indian Gaming Regulatory Act (“IGRA”), expressly overruled Union Gas as to the latter holding, finding instead that Congress had no power to abrogate state sovereign immunity under the Interstate Commerce Clause. U.S. Const., art. I, § 8, cl. 3. After Seminole Tribe, Section 5 of the Fourteenth Amendment remains the only valid basis upon which Congress can override sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (“We think that Congress may, in determining what is “appropriate legislation” for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.”) Seminole Tribe’s contraction of Congress’ abrogation authority thus deflates citizen suit jurisdiction under not only § 1365 of the CWA, but numerous environmental citizen suit provisions, all presumably passed pursuant to the Interstate Commerce Clause. See, e.g., the Toxic Substances Con trol Act, 15 U.S.C. § 2619; the Endangered Species Act, 16 U.S.C. § 1540(g); the Noise Control Act, 42" }, { "docid": "20913885", "title": "", "text": "in Hoffman, I see no reason to treat Congress’ power under the Bankruptcy Clause any differently [than the Commerce Clause power, as addressed in Union Gas ], for both constitutional provisions give Congress plenary power over national economic activity. See The Federalist No. 42, p. 271 (C. Rossiter ed. 1961) (J. Madison) (describing the Bankruptcy Clause and the Commerce Clause as “intimately connected”). Hoffman, 492 U.S. at 111, 109 S.Ct. at 2828 (Marshall, J., dissenting). Despite its recognition of the limitations placed on Article I powers by the Eleventh Amendment, the Seminole Court did acknowledge a legitimate source of congressional power to abrogate states’ immunities. Section 5 of the Fourteenth Amendment, which was ratified 70 years after the Eleventh Amendment, appears to take back some of the earlier amendment’s limitations because, “by expanding federal power at the expense of state autonomy, [it] fundamentally altered the balance of state and federal power struck by the Constitution” and “expressly provided that ‘The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.’” Seminole, — U.S. at -, 116 U.S. at 1125 (quoting U.S. Const, amend. XIV, § 5). “As a result, when acting pursuant to § 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States’ consent.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985); see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). The United States thus urges us to sustain § 106 under the authority granted Congress by § 5 of the Fourteenth Amendment. But as the Supreme Court’s recent pronouncement in City of Boeme v. Flores indicates, § 5 of the Fourteenth Amendment does not grant Congress a plenary power. — U.S. -, ---, 117 S.Ct. 2157, 2167-68, 138 L.Ed.2d 624 (1997) (“Any suggestion that Congress has a substantive non-remedial power under the Fourteenth Amendment is not supported by our case law.”). In this ease, there is no evidence to indicate that in enacting the Bankruptcy Reform Act of 1994, Congress acted under" }, { "docid": "16616681", "title": "", "text": "next determine whether Congress, in enacting the specific legislation, was acting pursuant to a valid exercise of power. Prior to Seminole Tribe, the Supreme Court had recognized two sources of authority through which Congress could validly abrogate state sovereign immunity: section 5 of the Fourteenth Amendment, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and the Interstate Commerce Clause. Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). In Seminole Tribe, however, the Court overruled Union Gas and held that “[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.” 517 U.S. at 72-73, 116 S.Ct. at 1131-32. “Thus, since Seminole Tribe section five of the Fourteenth Amendment has been the sole basis for Congress to abrogate the states’ immunity under the Eleventh Amendment.” College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 131 F.3d 353, 358 (3d Cir.1997). In light of the foregoing, we must determine, first, whether Congress expressly abrogated the states’ Eleventh Amendment immunity when enacting the current version of § 106(a), and, second, whether the Act in question was passed pursuant to a constitutional provision granting Congress the power to abrogate. There can be no doubt that Congress unequivocally expressed its intent to abrogate the states’ Eleventh Amendment immunity under the Bankruptcy Code. See Matter of Estate of Fernandez, 128 F.3d 241, 243 (5th Cir.1997); In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1145 (4th Cir.1997). Section 106(a) explicitly states that, “[n]otwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section....” The only question before us, therefore, is whether Congress acted pursuant to a valid exercise of its power. Sacred Heart contends that Seminole Tribe merely held that Congress could not abrogate sovereign immunity pursuant to the Indian and Interstate Commerce Clauses and did not address Congress’ other Article I powers. Sacred Heart also argues that the Bankruptcy Clause is distinguishable from other" }, { "docid": "23339525", "title": "", "text": "Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause.” Seminole, at-, 116 S.Ct. at 1122. Because Florida had not consented to be sued, the Supreme Court also asked whether “Congress through [the IGRA] abrogated the States’ sovereign immunity.” Id. at -, 116 S.Ct. at 1123. The Court found that the IGRA expressly intended to abrogate a state’s sovereign immunity and next turned to the question of whether the IGRA was passed pursuant to a constitutional provision granting Congress the power to abrogate. In its analysis, the Court noted that such authority had been granted under only two provisions of the Constitution: (1) the Fourteenth Amendment, see Fitzpatrick, 427 U.S. at 454-55, 96 S.Ct. at 2670-71 (holding that Congress may abrogate the States’ Eleventh Amendment sovereign immunity under § 5 of the Fourteenth Amendment because the Fourteenth Amendment, adopted well after the Eleventh Amendment and ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment); and (2) the Interstate Commerce Clause, see Union Gas, 491 U.S. at 23, 109 S.Ct. at 2286. As the Fourteenth Amendment played no part in the Seminole decision, the Court focused on the Interstate Commerce Clause. The Court noted that “[i]f anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause,” Seminole, at-, 116 S.Ct. at 1126, and undertook a reexamination of Union Gas — the only Supreme Court ease to uphold congressional abrogation of a state’s sovereign immunity under the Interstate Commerce Clause. A plurality of the Court in Union Gas believed that “the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce,” 491 U.S. at 14, 109 S.Ct. at 2281, and reasoned that such power “would be incomplete without the authority to render States liable in damages ...” Id. at 19, 109 S.Ct. at 2284. In fact, the Court recognized carte blanche consent under the Interstate" }, { "docid": "6881230", "title": "", "text": "language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985) (internal quotations omitted)). The language of the 1990 amendments to the Copyright Act evinces an unmistakable intent to abrogate State sovereign immunity. The statute reads: Any State, any instrumentality, of a State, and any officer or employee of a State or instrumentality of a State ... shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of. sovereign immunity, from suit in Federal court by any person, ... for a violation of any of the exclusive rights of a copyright owner____ 17 U.S.C. § 511(a). The plain language of the statute makes it indubitable that Congress intended through this Act to abrogate the States’ sovereign immunity from suit in copyright matters. Having concluded that Congress clearly intended to abrogate the States’ sovereign immunity through the Copyright Act amendment, the Court now considers whether Congress passed the Act “pursuant to a valid exercise of power.” Mansour, 474 U.S. at 68, 106 S.Ct. at 425-26. The “inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?” Seminole Tribe, 116 S.Ct. at 1125 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 2669-71, 49 L.Ed.2d 614 (1976)). The Supreme Court has previously found authority to abrogate under' only two provisions of the Constitution. In Fitzpatrick, the Court recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, fundamentally altered the balance of state and federal power struck by the Constitution. Fitzpatrick, 427 U.S. at 455, 96 S.Ct. at 2671. The Supreme Court made the only other finding of abrogation in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). In that case, a plurality of" }, { "docid": "6877818", "title": "", "text": "2397 (“permissible inference” of an intent to abrogate is not enough). Thus, we conclude the district court correctly held that the ADEA’s text does not reflect an unmistakably clear intent to abrogate Eleventh Amendment immunity. We disagree with other circuits that have found an intent to abrogate without analyzing this aspect of the 1974 amendments. B. Congressional power to abrogate. Even if the ADEA’s text contained a sufficiently clear expression of intent to abrogate, we conclude that Congress lacked the power to abrogate Eleventh Amendment immunity. The Commerce Clause, part of Article I of the Constitution, cannot be used to abrogate the Eleventh Amendment’s limitation on the Article III jurisdiction of the federal courts. See Seminole Tribe, 116 S.Ct. at 1131-32, overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). However, § 5 of the Fourteenth Amendment is a valid basis for abrogating Eleventh Amendment immunity because that Amendment was intended to “fundamentally alter[] the balance of state and federal power struck by the Constitution.” Id. at 59, 116 S.Ct. at 1125, citing Fitzpatrick, 427 U.S. at 452-56, 96 S.Ct. 2666. Section 5 “is a positive grant of legislative power” to enforce § 1 of the Fourteenth Amendment. City of Boerne v. Flores, — U.S. -, -, 117 S.Ct. 2157, 2163, 138 L.Ed.2d 624 (1997), quoting Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Those sections provide in relevant part: Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. :1s * $ ‡ * Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. The ADEA has been upheld as a valid exercise of Congress’ power under the Commerce Clause. See E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). The" }, { "docid": "16616680", "title": "", "text": "a valid exercise of power_” Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984)). “Congress’ intent to abrogate the States’ immunity from suit must be obvious from ‘a clear legislative statement.’ ” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786, 111 S.Ct. 2578, 2584, 115 L.Ed.2d 686 (1991)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Atascadero, 473 U.S. at 246, 105 S.Ct. at 3149. Rather, abrogation will be effected only when the intent to abrogate is “stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.” Id. at 239-40, 105 S.Ct. at 3146 (quotation marks omitted). If congressional intent to abrogate is found, a federal court must next determine whether Congress, in enacting the specific legislation, was acting pursuant to a valid exercise of power. Prior to Seminole Tribe, the Supreme Court had recognized two sources of authority through which Congress could validly abrogate state sovereign immunity: section 5 of the Fourteenth Amendment, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and the Interstate Commerce Clause. Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). In Seminole Tribe, however, the Court overruled Union Gas and held that “[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.” 517 U.S. at 72-73, 116 S.Ct. at 1131-32. “Thus, since Seminole Tribe section five of the Fourteenth Amendment has been the sole basis for Congress to abrogate the states’ immunity under the Eleventh Amendment.” College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 131 F.3d 353, 358 (3d Cir.1997). In light of the foregoing, we must determine, first," }, { "docid": "608322", "title": "", "text": "116 S.Ct. at 1123. In determining the sources of power, the Supreme Court had previously found that Congress possessed the power to abrogate the states’ sovereign immunity when legislating pursuant to § 5 of the Fourteenth Amendment and the Commerce Clause. See id.; see also Fitzpatrick, 427 U.S. 445, 96 S.Ct. 2666; Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (holding that Congress could abrogate the Eleventh Amendment pursuant to the Commerce Clause). However, the Supreme Court in Seminole Tribe overruled its plurality decision in Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, where the Supreme Court held that Congress could abrogate the Eleventh Amendment pursuant to the Commerce Clause, by stating that “[w]e feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.” Seminole Tribe, — U.S. at -, 116 S.Ct. at 1128. As a result of the Supreme Court decision in Seminole Tribe, the foundation for ADEA cases against states and state entities entitled to Eleventh Amendment immunity has been removed. In Seminole Tribe, the Court, among other things, held that Congress cannot abrogate the Eleventh Amendment immunity enjoyed by the State when enacting legislation pursuant to the Commerce Clause. Id. at ---, 116 S.Ct. at 1131-32. Thus, if the ADEA was enacted by Congress only pursuant to that body’s legislative power granted under the Commerce Clause, the University of Montevallo enjoys absolute immunity to MacPherson’s and Narz’s ADEA claim. As Seminole Tribe makes clear, Congress only has the power to abrogate Eleventh Amendment immunity when enacting legislation pursuant to § 5 of the Fourteenth Amendment. Consequently, the determinative inquiry before this court is whether the ADEA was a valid exercise of that Congressional power. More specifically, because the ADEA as originally enacted in 1967 did not reach state employees, the focus of this court’s attention is whether the 1974 Amendments to the ADEA, which extended coverage of the ADEA to state governments in 29 U.S.C. § 630(b)(2), were passed pursuant to § 5 of the Fourteenth Amendment. Prior to Seminole" }, { "docid": "19177144", "title": "", "text": "Clause any differently” from its powers under the Commerce Clause); In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1145 (4th Cir.1997); In re Sacred Heart Hosp. of Norristown, 204 B.R. 132, 138 (E.D.Pa.1997) (noting that “[t]he Bankruptcy Clause is identical to the Indian Commerce Clause in both wording and scope”), aff'd, 133 F.3d 237 (3rd Cir.1998). Consequently, Congress’s attempt to abrogate the states’ Eleventh Amendment immunity in § 106(a) pursuant to Congress’s Bankruptcy Clause power is ineffective. One source for Congress’s power to abrogate the states’ immunity is the Fourteenth Amendment. The Fourteenth Amendment expanded federal power at the expense of state autonomy, and fundamentally changed the balance of state and federal power struck by the Constitution. Seminole, 517 U.S. at 58-60, 116 S.Ct. at 1125. “[T]hrough the Fourteenth Amendment, federal power extend[s] to intrude upon the province of the Eleventh Amendment and therefore ... Section 5 of the Fourteenth Amendment allow[s] Congress to abrogate the immunity from suit guaranteed by that Amendment.” Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976)). Thus, Congress may abrogate, under the Fourteenth Amendment, state sovereign immunity protected by the Eleventh Amendment. But Congress does not have the power to pass general, substantive legislation that abrogates state sovereign immunity pursuant to section 5 of the Fourteenth Amendment. See City of Boerne v. Flores, — U.S. -, -, 117 S.Ct. 2157, 2164-66, 138 L.Ed.2d 624 (1997); accord In re Fernandez, 123 F.3d 241 (5th Cir.1997). The Supreme Court has described this power as “remedial.” See South Carolina v. Katzenbach, 383 U.S. 301, 326, 86 S.Ct. 803, 817-18, 15 L.Ed.2d 769 (1966). Congress’s power under Section 5 extends only to enforcing the provisions of the Fourteenth Amendment. Flores, — U.S. at -, 117 S.Ct. at 2164. There must be some connection between the statute in question and the prohibitions against the states enumerated in the Fourteenth Amendment. “[I]f Congress does not explicitly identify the source of its power as the Fourteenth Amendment, there must be something about the [statute] connecting it to recognized Fourteenth Amendment" }, { "docid": "6881231", "title": "", "text": "the Court now considers whether Congress passed the Act “pursuant to a valid exercise of power.” Mansour, 474 U.S. at 68, 106 S.Ct. at 425-26. The “inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?” Seminole Tribe, 116 S.Ct. at 1125 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 2669-71, 49 L.Ed.2d 614 (1976)). The Supreme Court has previously found authority to abrogate under' only two provisions of the Constitution. In Fitzpatrick, the Court recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, fundamentally altered the balance of state and federal power struck by the Constitution. Fitzpatrick, 427 U.S. at 455, 96 S.Ct. at 2671. The Supreme Court made the only other finding of abrogation in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). In that case, a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate State sovereign immunity. The Court later noted, however, that Justice Brennan’s opinion in Union Gas was of questionable precedential value because a majority of the Court disagreed with the rationale of the plurality. Seminole Tribe, 116 S.Ct. at 1128. In overruling Union Gas, Chief Justice Rehnquist nóted that Union Gas was a “solitary departure from established law,” and that the opinion “eviscerated” the Court’s landmark holding in Hans v. Louisiana. Id. Understanding the Supreme Court’s holding that the Fourteenth Amendment is the only means by which Congress can abrogate State sovereign immunity, the Court' now applies the Supreme Court’s precedent to the case sub judice. A recent Fifth Circuit ease which the Supreme Court vacated and remanded shows why the Eleventh Amendment bars Rodriguez’ suit against the Commission. In University of Houston v. Chavez, 517 U.S. 1184, 116 S.Ct. 1667, 134 L.Ed.2d 772 (1996), the Court vacated and remanded the Fifth Circuit’s ruling which failed" }, { "docid": "5551769", "title": "", "text": "2273, 105 L.Ed.2d 1 (1989), in which a plurality of the Court held that the Interstate Commerce Clause, U.S. Const, art. I, § 8, cl. 3, gave Congress the power to abrogate state sover eign immunity. See 517 U.S. at 63-66, 116 S.Ct. 1114. The Court in Seminole Tribe reaffirmed, however, that valid legislation pursuant to § 5 of the Fourteenth Amendment could serve as a basis for abrogating state sovereign immunity. See id. at 59-60, 63-66, 116 S.Ct. 1114 (discussing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)) (“Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment.”). Thus, “[e]ven after Seminole Tribe, ‘the Eleventh Amendment does not insulate the states from suits in federal courts to enforce federal statutes enacted under the authority of the Fourteenth Amendment.’ ” Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F.3d 761, 766 (7th Cir.1998) (quoting Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487 (7th Cir.1997)). The University raises a number of arguments contending that Congress did not validly abrogate the States’ Eleventh Amendment immunity when it passed the Equal Pay Act. First, the University asserts that the Equal Pay Act does not contain a clear and unequivocal expression of Congress’s intent to abrogate the States’ immunity. Second, the University posits that Congress passed the Equal Pay Act pursuant to its power under the Commerce Clause and not pursuant to its power under § 5. The University argues that, following Seminole Tribe, Commerce Clause legislation cannot validly abrogate the States’ immunity from suit in federal court. Third, the University asserts that the Equal Pay Act does not constitute valid legislation under Congress’s § 5 power in any event. In this context, the University relies on the Supreme Court’s interpretation of § 5 in City of Boerne v. Flores, — U.S." }, { "docid": "1357741", "title": "", "text": "power under the Indian Commerce Clause of Article I, § 8 of the Constitution. The circuit court, disagreeing with the district court, concluded however, that Congress was without the power to abrogate a State’s Eleventh Amendment immunity from suit under the Indian Commerce Clause. Certiorari was granted by the Supreme Court to consider two specific issues: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex Parte Young permit suits against a State’s governor for prospective injunctive relief to enforce the good faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit’s dismissal of petitioner’s suit. Seminole Tribe, — U.S. at-, 116 S.Ct. at 1122. The Supreme Court stated: In order to determine whether Congress has abrogated the States’ sovereign immunity, we ask two questions: first, whether Congress has “unequivocally expresse[d] its intent to abrogate the immunity,” Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985); and second, whether Congress has acted “pursuant to a valid exercise of power.” Ibid. Seminole Tribe, — U.S. at-, 116 S.Ct. at 1123. The Supreme Court agreed that, with the enactment of § 2710(d)(7), Congress had in fact provided an “unmistakably clear” statement of its intent to abrogate. Id. However, the Court also concluded that the abrogation of sovereign immunity was not passed pursuant to a valid exercise of power under the Indian Commerce Clause. In making that determination, the Court stated: ... Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456, 96 S.Ct. 2666, 2669-2671, 49 L.Ed.2d 614 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance" }, { "docid": "608321", "title": "", "text": "134 L.Ed.2d 252 (1996). In addressing Congress’ intent to abrogate the states’ sovereign immunity through the ADEA, the court concludes that Congress clearly and unmistakably intended to abrogate the States’ Eleventh Amendment immunity. Congress expressed its intention by including in the ADEA’s definition of “employer” a “State and any ... agency or instrumentality of a State ...” 29 U.S.C. § 626(b) (1996). Furthermore, numerous district and circuit courts have come to the same conclusion on the issue of Congress’ intent. See, e.g., Hurd v. Pittsburg State Univ., 29 F.3d 564, 564-65 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 321, 130 L.Ed.2d 282 (1994); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 700-01 (1st Cir.1983). The next hurdle is the one plaintiffs fail to clear: Does Congress have the power under the United States Constitution to abrogate the states’ Eleventh Amendment immunity? The Supreme Court has recently reiterated that Congress cannot invade Eleventh Amendment immunity except “pursuant to a valid exercise of power” conferred by the Constitution. Seminole Tribe, — U.S. at -, 116 S.Ct. at 1123. In determining the sources of power, the Supreme Court had previously found that Congress possessed the power to abrogate the states’ sovereign immunity when legislating pursuant to § 5 of the Fourteenth Amendment and the Commerce Clause. See id.; see also Fitzpatrick, 427 U.S. 445, 96 S.Ct. 2666; Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (holding that Congress could abrogate the Eleventh Amendment pursuant to the Commerce Clause). However, the Supreme Court in Seminole Tribe overruled its plurality decision in Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, where the Supreme Court held that Congress could abrogate the Eleventh Amendment pursuant to the Commerce Clause, by stating that “[w]e feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.” Seminole Tribe, — U.S. at -, 116 S.Ct. at 1128. As a result of the Supreme Court decision in Seminole Tribe, the foundation for ADEA cases against states and state entities entitled to Eleventh" }, { "docid": "23339526", "title": "", "text": "Article III and the Eleventh Amendment); and (2) the Interstate Commerce Clause, see Union Gas, 491 U.S. at 23, 109 S.Ct. at 2286. As the Fourteenth Amendment played no part in the Seminole decision, the Court focused on the Interstate Commerce Clause. The Court noted that “[i]f anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause,” Seminole, at-, 116 S.Ct. at 1126, and undertook a reexamination of Union Gas — the only Supreme Court ease to uphold congressional abrogation of a state’s sovereign immunity under the Interstate Commerce Clause. A plurality of the Court in Union Gas believed that “the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce,” 491 U.S. at 14, 109 S.Ct. at 2281, and reasoned that such power “would be incomplete without the authority to render States liable in damages ...” Id. at 19, 109 S.Ct. at 2284. In fact, the Court recognized carte blanche consent under the Interstate Commerce Clause opining that: [t]he States held liable under such a congressional enactment are thus not “unconsenting”; they gave their consent all at once, in ratifying the Constitution containing the Commerce Clause, rather than on a case-by-ease basis. Id. at 20, 109 S.Ct. at 2284. Seminole put an end to such seemingly unbridled congressional power concluding that Union Gas departed from established federalism jurisprudence in that it expanded the jurisdiction of the federal courts beyond the bounds of Article III. See Seminole, at -, 116 S.Ct. at 1128; Union Gas, 491 U.S. at 39, 109 S.Ct. at 2301 (Scalia, j., dissenting)(“[t]he ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’ By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance.”) (citations omitted). The Supreme Court explicitly overruled Union Gas and, by necessity, rejected claims with respect to the IGRA and found that the Seminole Tribe’s suit against Florida" } ]

[ { "docid": "4651476", "title": "", "text": "compensation from increasing those rates in 1984, even if they would otherwise have been eligible for an update under 42 C.F.R. § 405.551(e). Each named plaintiff underwent surgery in 1984 or 1985, and was billed directly for services rendered during the surgery. The plaintiffs submitted these bills to the insurance carrier designated to process their Medicare Part B claims. The insurance carrier approved only a fraction of the charges submitted, and each plaintiff received only 80% of the approved amount. The reimbursement check sent to each plaintiff was accompanied by an “Explanation of Benefits,” which stated that the amount approved was not the amount of the bill because the carrier had to select the lowest of the three possible calculations— actual, customary, or prevailing charge. For the plaintiffs’ benefit claims, the carrier indicated that the amount ápproved was based on the physician’s “customary charge.” The plaintiffs contend that the “customary charge” applied to their benefit claims was not as stated on the form. Rather, because the physicians who rendered services to them had switched from hospital-based compensation to direct billing after November 1, 1982, the “customary charge” computation was limited by 42 C.F.R. § 405.551(e) and the DRA. The plaintiffs allege that 42 C.F.R. § 405.551(e) is unlawful because it reduces by two-thirds the Medicare reimbursement that beneficiaries affected by it would otherwise be entitled to receive. Plaintiffs seek a declaratory judgment that regulation § 405.551(e) violates 42 U.S.C. § 1394u(b)(3) and is unlawful, null and void ab initio. Plaintiffs further allege that defendants’ application of the DRA to freeze customary charges for former hospital-based physicians is arbitrary, capricious, and contrary to law. They seek an order directing defendants to require Medicare carriers to use actual customary charges for all physicians as of July 1, 1984, without regard to the DRA, or to require carriers to employ “statutory” customary charges rather than the provisions of 42 C.F.R. § 405.551(e). Plaintiffs also allege that defendants’ application of customary charge calculations under 42 C.F.R. § 405.-551(e) violates Medicare beneficiaries’ right to equal protection of the laws. Plaintiffs ask that defendants be directed" } ]

[ { "docid": "17551231", "title": "", "text": "Since January 1, 1994 the Health Financing Agency has mandated that the “one-and-one-half’ rule no longer be applied to concurrent invasive monitoring. B. The Present Appeal Monica Furlong, Lawrence Schwartz, Robert Sloan and Kenneth Y. Sunew are the plaintiffs who commenced the present action on June 30, 1994 in federal court. At various times in 1992 and 1993 they performed concurrent invasive monitoring on patients undergoing surgery at various New York hospitals. Furlong and Schwartz accepted assignment for their services. Sloan accepted assignment for some, but not all, services. Sunew did not accept assignment for his services. Plaintiffs’ complaint, which seeks declaratory and injunctive relief, is divided into two parts. The first part seeks relief on behalf of a putative class of anesthesiologists who had accepted assignment of Part B claims from their patients for concurrent invasive monitoring procedures from July 1, 1988 to December 31, 1993. In particular, Furlong, Schwartz and Sloan allege that the carriers improperly applied the “one-and-one-half’ rule to concurrent invasive monitoring because the procedure should have been considered “medical,” not “surgical.” As a result of applying the rule, Furlong, Schwartz and Sloan continue, the carriers erroneously lowered the Medicare-approved charge for their services and reduced the reimbursement amount to which they were entitled, thereby violating § 706(2)(A) of the Administrative Procedure Act (APA) and the Fifth Amendment Due Process clause. The second part of the complaint involves a putative class of physicians, like Sloan and Sunew, who exercised their option to refuse assignment of their patients’ Medicare claims for concurrent invasive monitoring procedures performed on or after January 1,1991. Sloan and Sunew allege they were in a unique predicament because the carriers’ determinations of the Medicare-approved charge directly impacted their ability to bill patients by limiting charges for their services. Yet because the physicians had no right under the regulations to appeal, they had no recourse to rectify the allegedly im proper fixing of that charge. They asserted further that their patients had no incentive to exercise their appeals rights to challenge these determinations since a successful appeal would result in greater financial liability for" }, { "docid": "19717526", "title": "", "text": "exhaustion would be futile or should otherwise be waived. Therefore, the post-1991 claims are dismissed for lack of subject matter jurisdiction. Conclusion For the foregoing reasons, plaintiffs’ motion for summary judgment and class certification is denied and defendants’ motion for judgment on the pleadings is granted. SO ORDERED. . Physicians who accept assignment under Part B agree to accept the level of charges approved by Medicare in full satisfaction for their services, receiving payment of eighty percent of such approved charges directly from the carrier. The beneficiary is liable for the remaining twenty percent of the approved charges. 42 U.S.C. § 1395u(b)(3)(B)(ii) (1994). Prior to January 1, 1991, a physician who did not accept assignment was generally free to charge the patient the physician's usual and customary charge for the service rendered without regard to the amount of the Medicare approved charge. After that date,; charges to be paid by the beneficiary were restricted to a specified percentage- above the Medicare-approved charge, known as the “limiting charge\" or \"recognized payment amount.\" See 42 U.S.C. § 1395w-4(g) (1994). . 42 C.F.R. § 405.553 (1990) provided, in relevant part: (e) Use of a uniform relative value guide— (1) General rule. For anesthesia services furnished by an anesthesiologist on' or after March 1, 1989, the amount of payment for the service is determined based on a uniform relative value guide. (2) Selection of a uniform relative value guide, The uniform relative value guide used is the 1988 American Society of Anesthesiologists' Relative Value Guide except that— ... (ii) Modifier units are not recognized.... . The language of the final rule was unchanged, in relevant part, from the language of the interim rule that had been in effect since March 1, 1989. . 42 C.F.R. § 414.46(b) (1995) formerly provided, in relevant part: (b) General rules. (1) For physician services furnished beginning January 1, 1992, HCFA bases payment on the lesser of the actual charge or the physician fee schedule amount in accordance with § 414.20. (2) The physician fee schedule amount is based on the product of allowable base and time units and" }, { "docid": "3308548", "title": "", "text": "to meet the requirements of personal performance or medical supervision were not reimbursable on a reasonable charge basis under Medicare as services to the patient. Instead, the anesthesiologist’s services would be considered supervisory services furnished to the hospital, reimbursable to the hospital on a reasonable cost basis only. 42 C.F.R. § 405.552(b) (1983); 48 Fed.Reg. 8902, 8927 (March 2, 1983). The defendants contend that if the anesthesiologists were not billed as performing or directing the cases, the government would have had to pay the anesthetists for the same service and therefore there would have been no net loss to the government. Before 1989, anesthetists were not eligible for reasonable charge reimbursements for anesthesia services. 48 Fed.Reg. at 8927. After January 1, 1989, Medicare reimbursed for anesthetists’ services, but at least for some of that time it paid a lower rate than it paid for anesthesiologists’ anesthesia services. United States General Accounting Office Report to Congressional Committees, Medicare Payments for Medically Directed Anesthesia Services Should Be Reduced 24-27 (March 1992). The Association filed an affidavit asserting that anesthetists were paid less than anesthesiologists for performing cases personally during much of the relevant time period. Therefore, it is incorrect to conclude that the government would have paid the same for the services no matter whether they were billed as personally performed by an anesthesiologist or not. Additionally, the Association claims that in some cases the hospitals certified that it was medically necessary for both an anesthesiologist and anesthetist to perform anesthesia on a single patient, with no concurrent cases, when in fact the anesthesiologist did not personally perform the case. In such cases, if the government paid the personal performance rate to both the anesthetist and the anesthesiologist, the government’s cost would be doubled. These sorts of pecuniary injury plainly confer standing on the relator who alleges them. The district court’s legal conclusion that the Association lacked standing was premised on a faulty understanding of the applicable regulations. IV. The Association also appeals the district court’s entry of summary judgment against it on the merits of its suit. The district court entered" }, { "docid": "4651491", "title": "", "text": "motion. However, in denying part of defendants' motion to dismiss, we have, in effect, granted summary judgment to the plaintiffs on a claim not addressed in their summary judgment motion. See infra note 13 and accompanying text. We reserve for subsequent decision the plaintiffs’ motion for class certification. .The plaintiffs’ motion for summary judgment asserts that 42 C.F.R. § 405.551(e) is null and void as a matter of law, and that its application and extension violates plaintiffs’ constitutional rights under the fifth amendment to equal protection of the law. Since the plaintiffs neither have asserted nor could assert that they fall within a \"suspect classification,” the burden remains upon them to demonstrate that the challenged government action is in no conceivable way rationally related to a legitimate state interest. The plaintiffs have not met this burden. At best, plaintiffs offer conclusory statements such as, “It is self-evident ... that the Secretary ... promulgated and implemented a wholly new policy through 42 CFR 405.551(e), with no statutory basis and which thereby deprives plaintiffs of their lawful and proper reimbursement,” or “the defendants have created an arbitrarily low level of reimbursement.” Plaintiffs' Memorandum of Law in Opposition to Defendants’ Motion to Dismiss at 23, 24. Consequently, the plaintiffs’ constitutional equal protection claim must fail. .We recognize that this holding will necessarily affect the definition of the plaintiff class. The plaintiffs purport to represent all individuals nationwide who submitted Medicare Part B claims for the services of doctors who switched from hospital compensation to direct billing on or after November 1, 1982. However, since we find 42 C.F.R. § 405.551(3), standing alone, to be valid, the class may not include individuals whose Medicare benefits were reduced solely by operation of that regulation. . Congress, no doubt, considered the political and budgetary ramifications of giving retroactive effect to the new legislation. This Court, however, must consider the legal rather than financial or political basis for granting or denying a claim for retroactive relief that has been properly presented for judicial review. .The defendants argue that, \"[wjhere Congress has amended a statute without altering a" }, { "docid": "19186110", "title": "", "text": "has been harmed as an individual competitor. It has not shown that defendants’ activities have had any adverse impact on price, quality, or output of medical services offered to consumers in the relevant market.”); Purgess v. Sharrock, 1992 WL 349683, at *2 (S.D.N.Y. Nov.9, 1992) (finding no antitrust injury where plaintiff, an anesthesiologist who was fired by a hospital, “merely asserts injury to himself as a competitor of [the hospital] and its anesthesiologists”); Ginzburg, 993 F.Supp. at 1019 (“Antitrust concerns ... are not implicated by an individual physician’s loss of income or patient referrals.”). Therefore, summary judgment is granted with respect to plaintiffs antitrust claims because plaintiff has failed to proffer any evidence of the relevant market alleged in her Amended Complaint and because, even if she had established the relevant market, she has failed to raise a genuine issue of material fact as to the existence of any antitrust injury. III. Interference With a Prospective Economic Advantage Claim To maintain an action for tortious interference with a plaintiffs business relations under New York law, the plaintiff must demonstrate that: “(1) there is a business relationship between the plaintiff and a third party; (2) the defendant, knowing of that relationship, intentionally interferes with it; (3) the defendant acts with the sole purpose of harming the plain tiff, or, failing that level of malice, uses dishonest, unfair, or improper means; and (4) the relationship is injured.” Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108-09 (2d Cir.1997); see Scutti Enters., LLC v. Park Place Entm’t Corp., 322 F.3d 211, 215 (2d Cir.2003). Plaintiff alleged in her original Complaint that defendants’ actions “were malicious and were solely intended to harm her by interfering with her prospective economic advantage and business relationships, by driving away patients, or forcing patients to consult other doctors with Hospital privileges, through unlawful and/or improper means.” (Compita 51.) After defendants moved to dismiss this claim, in part on the ground that plaintiff had failed to allege some particular, existing business relationship with which the defendants interfered, (Defs. Mem. Supp. Mot. Dismiss (Document # 9) at 16-18), plaintiff amended" }, { "docid": "2714908", "title": "", "text": "MEMORANDUM OPINION KESSLER, District Judge. Plaintiffs bring this action against Donna E. Shalala, in her official capacity as the Secretary of the Department of Health 'and Human Services (“HHS”), to challenge an interim final rule which requires a physician or other licensed independent practitioner to evaluate a patient, face-to-face, within one hour after the patient has been placed in restraints or seclusion. This matter is before the Court on Plaintiffs’ Motion for Summary Judgment and Application for Permanent Injunction, and Defendant’s Motion for Summary Judgment. Upon consideration of the motions, oppositions, replies, the arguments made at the motions hearing, and the entire record herein, for the reasons discussed below, Plaintiffs’ Motion for Summary Judgment is granted in part and denied in part, Plaintiffs’ Application for Permanent Injunction is denied, and Defendant’s Motion for Summary Judgment is granted in part and denied in part. I. Background Plaintiffs bring this case to challenge the interim final rule promulgated by HHS, which requires a physician or other licensed independent practitioner to evaluate a patient, face-to-face, within one hour after the patient has been placed in restraints or in seclusion. 42 C.F.R. § 482.13(f)(3)(ii)(C). This rule will hereafter be referred to as the “one-hour rule.” Plaintiffs are private psychiatric hospitals, and organizations that represent private hospitals, private psychiatric hospitals, and psychiatric units within acute care hospitals. Most of the hospitals represented participate in both the Medicare and Medicaid programs. A few participate in Medicaid but not Medicare. To participate in Medicare, hospitals must meet certain conditions of participation (“COPs”), which are imposed by statute, regulation, or both. The Medicare statute allows the Secretary to impose additional COPs as necessary to protect the health and safety of Medicare beneficiaries. Hospitals which have received accreditation by a national accreditation body, such as the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”), are generally deemed to be in compliance with Medicare COPs, except that the Secretary may promulgate standards or requirements higher or more stringent than those prescribed for accreditation by such a national accreditation body. 42 U.S.C. § 1395bb(a), (b). The Health Care Financing Administration (“HCFA”)," }, { "docid": "7297592", "title": "", "text": "the plurality had found a taking despite the lack of an identified property interest at stake. This result departed from precedent: “As the range of governmental conduct subjected to takings analysis has expanded ... we have been careful not to lose sight of the importance of identifying the property allegedly taken, lest all governmental action be subjected to [takings scrutiny].” Id. at -, 118 S.Ct. at 2156 (Kennedy, J.). Eastern Enterprises leaves the necessity of an identified property interest in doubt. Since this issue need not be decided to dispose of the takings claim, the Court assumes for the purposes of the motion to dismiss that the HHAs and the beneficiaries have identified a property interest at stake. The Court’s inquiry need not extend beyond the character of the governmental action. For a regulation to exceed constitutional bounds, it must create a legal compulsion over the claimants. Hinesburg Sand, 959 F.Supp. at 657. The IPS lacks the necessary legal compulsion over Plaintiffs to constitute a taking. The Second Circuit found no legal compulsion in Medicare price regulations applicable to anesthesiologists, in Garelick v. Sullivan, 987 F.2d 913 (2d Cir.1993). Though the regulations limited how much the plaintiff doctors could charge, this Circuit found no taking since provider participation in Medicare is voluntary. Id. at 917. See also Whitney v. Heckler, 780 F.2d 963 (11th Cir.1986) (temporary freeze on providers’ actual charges to Medicare patients did not constitute a taking; plaintiffs were not required to treat Medicare patients); Good Samaritan Medical Center v. Heckler, 605 F.Supp. 19 (S.D.Ohio 1984) (as providers’ involvement in Medicare is voluntary, reduced compensation is not a taking). Cf. Methodist Hospitals v. Indiana Family & Social Services, 860 F.Supp. 1309 (N.D.Ind.1994) (hospital had standing and factual basis for trial on taking with regard to state’s new Medicaid emergency care reimbursement rates; hospital’s emergency room was compelled to treat all individuals, including Medicare patients). Not unlike this case, in Garelick the anesthesiologists pointed to their unique situation, alleging that New York law compelled them to serve Medicare patients and that the economic hardship of the limits amounted to" }, { "docid": "11566567", "title": "", "text": "Subsequently, the freeze of customary charges imposed by the DRA was extended through March 14, 1986. As a consequence of the application of 42 C.F.R. § 405.551(e) in conjunction with the DRA, the customary charge for certain physicians, and hence the reimbursement to their patients, continued to be based on the physicians’ hospital salary years after the physician switched to fee-for-service billing. Thus, reimbursements were made to some patients at a rate which was a small fraction of the physicians’ actual charge, and a small fraction of the amount which would have been reimbursed had the physician switched to direct billing prior to November 1, 1982. For example, Mary Cosgrove submitted bills for covered services which totalled $936. Under the disputed method of calculation, the total amount of approved reimbursement to her was $138. DISCUSSION The Secretary contends that the continued application of section 405.551(e) after the passage of the DRA was not arbitrary and capricious. We disagree. As the Secretary concedes, the purpose of section 405.551(e) was merely to facilitate the complex task of setting customary charges by ensuring that sufficient data existed to set the charges accurately. The regulation was not intended to hold down the customary charges for physicians who converted to direct fee-for-service billing. Under Medicare Part B, “similar services ... are to be compensated equally, regardless of who performs them.” Michigan Academy of Family Physicians v. Blue Cross & Blue Shield, 728 F.2d 326, 331 (6th Cir.1984), aff'd after remand, sub nom. Bowen v. Michigan Academy, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). Regulations in place prior to section 405.551(e) directed that all determinations of reasonable charges be “realistic and equitable.” 42 C.F.R. § 405.502(c). Moreover, the regulations now provide for adjustment of benefits where the existing rules result in grossly deficient charges. Id. § 405.502(g). We are reluctant to interfere with the Secretary’s discretion in administering Medicare. See St. Mary’s Hosp. v. Blue Cross & Blue Shield Ass’n, 788 F.2d 888, 890 (2d Cir.1986). Nevertheless, we agree with Judge Goettel’s conclusion that setting reimbursement rates for the newly direct-billing physicians at" }, { "docid": "22015074", "title": "", "text": "or will be fairly traceable to the promulgation of the regulations and does not result from the independent action of some third party not before the court, and that the connection between the agency action and the alleged injury rests upon more than “remote possibilities” or “speculative inferences.” Eastern Ky. Welfare Rights Org., supra, 426 U.S. at 42-43, 96 S.Ct. at 1926-27. We believe that plaintiffs have demonstrated a sufficiently direct and perceptible connection between the disputed drug reimbursement limitations and the exercise of their medical judgment. First, there are some instances under the Medicare and Medicaid statutes in which the reimbursement limitations in the regulations would apply directly to physicians’ bills irrespective of hospital or pharmacy drug policies. In these cases, it is plausible that the regulations pose a substantial likelihood that the doctor will prescribe only those drugs for which he himself may receive full reimbursement, at least where more costly drugs are not medically necessary although indicated for his patient. Second, even where the drugs are provided by hospitals or pharmacies rather than by the physician, it can readily be inferred from the allegations that these third parties will be less willing to provide non-MAC-listed drugs for Medicare and Medicaid patients for the sole purpose of avoiding the financial drain of uncompensated services. Regarding these third parties, we believe the present case is distinguishable from Eastern Ky. Welfare Rights Org., supra. In that case, the Court denied standing to several organizations and indigent individuals who had claimed that certain government officials had “encouraged” the denial of hospital services to indigents by issuance of an Internal Revenue Service ruling which allowed favorable tax treatment to certain nonprofit hospitals which offered emergency room but not other hospital services to indigents. The Court held that it was purely speculative whether the alleged denials of hospital services were attributable to the defendants’ encouragement, or resulted from independent decisions by the third party hospitals not traceable to tax considerations. On the contrary, the alleged interference here is directly traceable to the defendant’s regulations. It is fairly inferable from the complaint that the" }, { "docid": "17551232", "title": "", "text": "“surgical.” As a result of applying the rule, Furlong, Schwartz and Sloan continue, the carriers erroneously lowered the Medicare-approved charge for their services and reduced the reimbursement amount to which they were entitled, thereby violating § 706(2)(A) of the Administrative Procedure Act (APA) and the Fifth Amendment Due Process clause. The second part of the complaint involves a putative class of physicians, like Sloan and Sunew, who exercised their option to refuse assignment of their patients’ Medicare claims for concurrent invasive monitoring procedures performed on or after January 1,1991. Sloan and Sunew allege they were in a unique predicament because the carriers’ determinations of the Medicare-approved charge directly impacted their ability to bill patients by limiting charges for their services. Yet because the physicians had no right under the regulations to appeal, they had no recourse to rectify the allegedly im proper fixing of that charge. They asserted further that their patients had no incentive to exercise their appeals rights to challenge these determinations since a successful appeal would result in greater financial liability for the patient. Specifically, Sloan and Su-new asserted that the Department violated the APA and them Fifth Amendment Equal Protection and Due Process rights. Defendants moved to dismiss the complaint in its^ntirety in January 1995. Judge Preska in a July 1996 order granted the motion, insofar as it concerned the anesthesiologists who had accepted assignment, on the ground that they had failed to exhaust administrative remedies. Both sides subsequently moved for summary judgment on the remaining claims regarding the anesthesiologists who had declined assignment. Defendants’ motion was granted in an order entered on July 8,1997. Appellants Sloan and Sunew challenge the July 8, 1997 dismissal of their claims on the basis that granting appeals rights to assign-ee-physicians but not non-assigned physicians is arbitrary and capricious in violation of § 706(2)(A) of the APA, and denies them equal protection of the laws. Appellants further maintain that non-assigned physicians have a property interest in full payment for their services, and that defendants’ application of the “one-and-one-half’ rule without permitting any administrative or judicial appeal deprives them of that" }, { "docid": "22015075", "title": "", "text": "than by the physician, it can readily be inferred from the allegations that these third parties will be less willing to provide non-MAC-listed drugs for Medicare and Medicaid patients for the sole purpose of avoiding the financial drain of uncompensated services. Regarding these third parties, we believe the present case is distinguishable from Eastern Ky. Welfare Rights Org., supra. In that case, the Court denied standing to several organizations and indigent individuals who had claimed that certain government officials had “encouraged” the denial of hospital services to indigents by issuance of an Internal Revenue Service ruling which allowed favorable tax treatment to certain nonprofit hospitals which offered emergency room but not other hospital services to indigents. The Court held that it was purely speculative whether the alleged denials of hospital services were attributable to the defendants’ encouragement, or resulted from independent decisions by the third party hospitals not traceable to tax considerations. On the contrary, the alleged interference here is directly traceable to the defendant’s regulations. It is fairly inferable from the complaint that the MAC regulations will not only discourage hospitals from making non-MAC-listed drugs available to Medicare and Medicaid patients, but will make it financially imperative for them to do so. But if the regulations are withdrawn, the impediment to professional judgment will disappear. The injury here is therefore both more direct and perceptible than that at issue in Eastern Ky. Welfare Rights Org. and it is certain that the prospective relief which plaintiffs seek will remove the alleged harm. Finally, this case contains elements of statutorily-conferred standing which were absent from Simon. Even if physicians would generally suffer little direct financial injury from the MAC regulations, they have alleged a different category of intangible injury, for their independent professional judgment is explicitly protected by 42 U.S.C. § 1395. In this connection, the Court has stated in Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973), that Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury exists without the statute. Thus" }, { "docid": "4651486", "title": "", "text": "the 8-month period defined in COBRA section 9304. The defendants argue that this claim is premature. We agree. Congress may extend the effective period of the relevant statute, as it extended the effective period of the DRA. Alternatively, the Secretary may promulgate new regulations to establish customary charges for physicians who change their method of compensation. It is inappropriate for us to second guess the contemplated actions of either the Congress or the Secretary. Consequently, we grant the defendants’ motion to dismiss plaintiffs’ claim for prospective relief. Conclusion The recent COBRA legislation amending the calculation of “customary charges” for physicians who, within a specified time period, switched from hospital-based compensation to direct billing, moots a portion of the plaintiffs’ complaint. Consequently, we grant the defendants’ motion to dismiss any part of the plaintiffs’ action that seeks an adjustment in Medicare benefits for the effective period of this new legislation, i.e., an 8-month period beginning May 1, 1986. We also grant defendants’ motion to dismiss plaintiffs’ claim for prospective relief, since that claim is premature. We deny the plaintiffs’ motion for summary judgment to the extent it seeks a declaration that 42 C.F.R. § 405.551(e) is unlawful and void ab initio, or that it violates the plaintiffs’ constitutional right to equal protection. However, we find that the Secretary’s application of the DRA in conjunction with 42 C.F.R. § 405.551(e) was erroneous and must be corrected. Hence, we deny defendants’ motion to dismiss plaintiffs’ claim for recalculation of benefits for the period July 1, 1984, through April 30, 1986, and effectively grant the plaintiffs summary judgment on this claim. To the extent our decision may affect the pending motion for class certification, if the parties wish to submit further papers in support of or opposition to that motion, they may set a reasonable schedule for doing so. SO ORDERED. . Part A of the Medicare program covers institutional health costs, such as hospital expenses. Part B supplements Part A by insuring against a portion of other medical expenses, such as physicians’ services. Eligible individuals pay monthly premiums if they choose to enroll" }, { "docid": "3308503", "title": "", "text": "either alone or under the supervision of an anesthesiologist. The Association claims that the defendant anesthesiologists and hospitals presented false claims for payment by mischaracter-izing anesthesia services rendered to Medicare patients from about 1989 to 1997. Four kinds of mischaracterizations are alleged: billing on a reasonable charge basis when the services the anesthesiologists provided did not meet the criteria for reasonable charge reimbursement; billing services as personally performed by the anesthesiologist when the services did not meet the criteria for personal performance; billing as if the anesthesiologist involved were directing fewer concurrent cases than he or she actually did direct; and certifying that it was medically necessary for both an anesthesiologist and anesthetist to personally perform cases that in fact an anesthetist alone personally performed. Understanding the significance of these alleged mischaracterizations requires some understanding of the Medicare regulations as they existed at the various times in question. We will therefore briefly explain the nature of each allegation before considering the questions of jurisdiction and standing and the merits of the case. A. The first type of mischaracterization alleged is that anesthesiologists billed services for reasonable charge reimbursement when they did not render services eligible for such reimbursement. In the early 1980s Congress became concerned that hospital-based physicians were charging Medicare for work performed by hospital employees. S.Rep. No. 97-494, at 22 (1982), reprinted in 1982 U.S.C.C.A.N. 781, 797-98. To stop this, Congress directed the Department of Health and Human Services to adopt regulations governing Medicare payments to physicians working in hospitals. Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, Title I, § 108, 96 Stat. 324, 337 (codified as amended at 42 U.S.C. § 1395xx(a)(l) (1994)). The regulations were to establish criteria for distinguishing between services rendered by a physician to an individual patient, which could be reimbursed on a reasonable charge basis, and services rendered to the provider or to the provider’s patient population as a whole, which would be reimbursed on a reasonable cost basis. Id. Accordingly, the Department adopted regulations in 1983 outlining when physicians providing anesthesia services would be reimbursed on a" }, { "docid": "19186109", "title": "", "text": "more competitive hospital with the addition of the new doctors”). The evidence also indicates that plaintiff has admitting privileges at three other hospitals, that she continues to maintain a cardiology practice in Port Jervis and that Tatelbaum has offered her a position with his practice group. Therefore, to the extent that physician choice has been reduced for those patients that wish to see plaintiff as their cardiologist, those patients may still be able to see her, to the extent that they can travel and do not require emergency services. Finally, although plaintiff may have established that defendants’ conduct caused various injuries to herself personally, such as loss of patients’ business and potential revenues from reading echo tests, this is insufficient to demonstrate that competition as a whole was harmed. See Capital Imaging Assocs., 996 F.2d at 547 (Affirming that summary judgment was warranted on Sherman Act claim brought by plaintiff, a radiology practice that had been excluded from providing services to patients of defendants’ health care provider, noting that “[plaintifffs position is simply that it has been harmed as an individual competitor. It has not shown that defendants’ activities have had any adverse impact on price, quality, or output of medical services offered to consumers in the relevant market.”); Purgess v. Sharrock, 1992 WL 349683, at *2 (S.D.N.Y. Nov.9, 1992) (finding no antitrust injury where plaintiff, an anesthesiologist who was fired by a hospital, “merely asserts injury to himself as a competitor of [the hospital] and its anesthesiologists”); Ginzburg, 993 F.Supp. at 1019 (“Antitrust concerns ... are not implicated by an individual physician’s loss of income or patient referrals.”). Therefore, summary judgment is granted with respect to plaintiffs antitrust claims because plaintiff has failed to proffer any evidence of the relevant market alleged in her Amended Complaint and because, even if she had established the relevant market, she has failed to raise a genuine issue of material fact as to the existence of any antitrust injury. III. Interference With a Prospective Economic Advantage Claim To maintain an action for tortious interference with a plaintiffs business relations under New York law," }, { "docid": "22015073", "title": "", "text": "arrangement, and are reflected in the physician’s overall bill. See 42 U.S.C. §§ 1395k, 1395x(s)(2). In cases where hospitals or pharmacies provide the drugs, plaintiffs’ allegations, insofar as they suggest financial injury, are reducible to the claim that physicians will tend to prescribe MAC-listed drugs so that hospitals and pharmacies will receive full reimbursement and so that patients will not have to take up the slack. This general absence of direct financial impact partially attenuates the effect of the regulations on the physician’s medical judgment. The indirectness of this injury, “while not necessarily fatal to standing, ‘may make it substantially more difficult to meet the minimum requirement of Art. Ill: to establish that, in fact, the asserted injury was the consequence of the defendant’s actions, or that prospective relief will remove the harm.’ ” Simon v. Eastern Ky. Welfare Rights Organization, supra, 426 U.S. at 44-45, 96 S.Ct. at 1927, quoting Warth v. Seldin, supra, 422 U.S. at 505, 95 S.Ct. 2197. In order to meet this burden, plaintiffs must show that their injury is or will be fairly traceable to the promulgation of the regulations and does not result from the independent action of some third party not before the court, and that the connection between the agency action and the alleged injury rests upon more than “remote possibilities” or “speculative inferences.” Eastern Ky. Welfare Rights Org., supra, 426 U.S. at 42-43, 96 S.Ct. at 1926-27. We believe that plaintiffs have demonstrated a sufficiently direct and perceptible connection between the disputed drug reimbursement limitations and the exercise of their medical judgment. First, there are some instances under the Medicare and Medicaid statutes in which the reimbursement limitations in the regulations would apply directly to physicians’ bills irrespective of hospital or pharmacy drug policies. In these cases, it is plausible that the regulations pose a substantial likelihood that the doctor will prescribe only those drugs for which he himself may receive full reimbursement, at least where more costly drugs are not medically necessary although indicated for his patient. Second, even where the drugs are provided by hospitals or pharmacies rather" }, { "docid": "14838085", "title": "", "text": "put_” Defendants’ Motion at 15. Thus, while defendants call the injuries speculative and attenuated, it appears that Congress intended just such injuries and reactions among cataract physicians. Given such a direct relationship and the actual injury alleged in the amended complaint, the Court declines to accept the defendants’ argument that plaintiffs do not have standing to challenge the statutory provisions. CONSTITUTIONAL CLAIMS Essentially, plaintiffs’ first three claims focus on the constitutionality of Congress’s actions. They claim Congress does not have the authority to regulate private financial arraignments between doctors and patients, and that even if Congress did, Congress’s limitations on what non-participating physicians may charge Medicare patients is irrational and violates both the physicians’ and patients’ equal protection rights. A. Congressional Authority Plaintiffs first allege that Congress lacks the authority to regulate the fees that non-participating physicians may charge because the fee limitations are not valid exercises of Congress’s authority to spend money in aid of the general welfare. Plaintiffs contend that the fee limitations do not implicate any expenditure of funds by the federal government. Lacking such expenditure of federal funds, plaintiffs allege that the General Welfare Clause, Art. I, § 8, cl. 1, does not give Congress authority to regulate the non-participating physicians’ fees. (Plaintiffs’ Opposition at 13.) Plaintiffs take the position that since the “[cjharges of nonparticipating physicians, and the entitlement of those physicians to payment from their patients, are independent from the operation of the Medicare program,” then the amount that non-participating physicians charge Medicare beneficiaries is also independent of Congress’s funding of Medicare, and thus outside of the scope of the General Welfare Clause. (Plaintiffs’ Opposition at 11.) The Court disagrees with this rationale. As defen dants point out in their Reply Brief in Support of Motion for Judgment on the Pleadings and To Dismiss (Defendants’ Reply), the actions of non-participating physicians are not truly independent of the Medicare program since by treating Medicare patients, non-participating physicians are an integral part of the workings and functioning of the Medicare system. (Defendants’ Reply at 5.) Although Medicare patients of non-participating physicians directly receive the funding from" }, { "docid": "7297593", "title": "", "text": "price regulations applicable to anesthesiologists, in Garelick v. Sullivan, 987 F.2d 913 (2d Cir.1993). Though the regulations limited how much the plaintiff doctors could charge, this Circuit found no taking since provider participation in Medicare is voluntary. Id. at 917. See also Whitney v. Heckler, 780 F.2d 963 (11th Cir.1986) (temporary freeze on providers’ actual charges to Medicare patients did not constitute a taking; plaintiffs were not required to treat Medicare patients); Good Samaritan Medical Center v. Heckler, 605 F.Supp. 19 (S.D.Ohio 1984) (as providers’ involvement in Medicare is voluntary, reduced compensation is not a taking). Cf. Methodist Hospitals v. Indiana Family & Social Services, 860 F.Supp. 1309 (N.D.Ind.1994) (hospital had standing and factual basis for trial on taking with regard to state’s new Medicaid emergency care reimbursement rates; hospital’s emergency room was compelled to treat all individuals, including Medicare patients). Not unlike this case, in Garelick the anesthesiologists pointed to their unique situation, alleging that New York law compelled them to serve Medicare patients and that the economic hardship of the limits amounted to compulsion. Garelick, 987 F.2d at 916-17. The Second Circuit rejected these arguments. First, regardless of whether the state health care structure required the plaintiffs to treat Medicare beneficiaries, no federal compulsion existed. Id. at 917. Second, although the price regulation applied to hospital work, which constituted the bulk of the anesthesiologists’ practice, the anesthesiologists were not compelled to work in hospitals. Even if they could not remain economically viable without doing so, economic hardship did not equal legal compulsion. Id. Similarly here, the character of the governmental action does not amount to a tak ing. The IPS limits reimbursement under Medicare, a program in which providers opt to participate. The fact that the State of Vermont has devised a scheme whereby the HHAs could not retreat from serving Medicare beneficiaries does not render the federal statute compulsory. In Vermont, to treat only non-Medieare patients may spell financial ruin for an agency, as a substantial percentage of home health care beneficiaries are Medicare recipients. Nonetheless, an action causing financial hardship is not necessarily compulsory. The character" }, { "docid": "13351837", "title": "", "text": "Court’s decision in Bethesda. As interpreted by the Court in Bethesda, the Medicare statute does not compel providers, such as Plaintiffs here, who are challenging the legality of. a Medicare regulation, to self-disallow to preserve their right to appeal to the Board. Accordingly, the Board erroneously concluded that it lacked jurisdiction to hear Plaintiffs’ request for expedited judicial review. The court therefore will grant Plaintiffs’ Motion for Summary Judgment and deny Defendant’s Cross-Motion for Summary Judgment, and will remand this matter to the Board for further proceedings consistent with this Memorandum Opinion. II. BACKGROUND A. Statutory and Regulatory Framework 1. The Medicare Statute The Medicare statute, 42 U.S.C. § 1395 et seq., establishes a federal health insurance program for the disabled and the elderly. A hospital or other provider of medical services participates in the Medicare program under a “provider agreement” with the Secretary of Health & Human Services — the named Defendant in this case. 42 U.S.C. § 1395cc. Part A of the Medicare program provides insurance for participating hospitals and pays them for covered medical services furnished to Medicare-eligible individuals. 42 U.S.C. §§ 1395c to 1395Í-4. Since 1983, Medicare has reimbursed hospitals for covered services through a prospective payment system (“PPS”). 42 U.S.C. § 1395ww(d); see also UMDNJ-Univ. Hosp. v. Leavitt, 539 F.Supp.2d 70, 71-72 (D.D.C.2008) (citations omitted). Under the PPS, payments to hospitals are made based on pre-determined flat rates for each of more than 450 diagnosis-related groups of treatments and services. See generally 42 C.F.R. § 412 (PPS regulations). Put simply, a hospital records the diagnosis of each patient, treats that patient, and then is later reimbursed based on a previously-determined rate for that specific diagnosis. Id. The PPS system also allows for “outlier” payments, which are payments made to reimburse the treatment of particularly weak or ill patients that require more robust and, therefore, more expensive treatment. 42 U.S.C. § 1395ww(d)(5)(A); 42 C.F.R. §§ 412.80-412.86. As discussed below, Plaintiffs’ challenge to these outlier regulations put in motion the events that led to this lawsuit. To secure payment from the Centers for Medicare and Medicaid Services" }, { "docid": "11566564", "title": "", "text": "ALTIMARI, Circuit Judge: In this case, we consider the method for calculating reimbursement under Medicare Part B for services performed by certain physicians between July 1, 1984 and April 30, 1986. The disputed method of calculation applied to services performed by physi cians who had been salaried hospital employees, but who had left the hospital’s employ and converted to direct fee-for-service billing on or after November 1, 1982. Plaintiffs-appellees Mary Cosgrove, John Shepsky, and Rose Singer challenged the defendants-appellants Secretary of the Department of Health and Human Services (the “Secretary”) and the Administrator of the Health Care Financing Administration’s application of the regulation which specified how customary charges were to be calculated for the newly direct-billing physicians. 42 C.F.R. § 405.551(e) (1983). Plaintiffs contended, inter alia, that defendants’ continued application of section 405.-551(e) in conjunction with provisions of the Deficit Reduction Act of 1984, Pub.L. No. 98-369, § 2306 (codified at 42 U.S.C. § 1395u(b)(4)(B) (Supp. II 1984)) (“DRA”), was arbitrary and capricious. The United States District Court for the Southern District of New York (Goettel, J.) agreed, and directed that defendants recalculate the reasonable charges for services performed by the fee-for-service physicians. 649 F.Supp. 1433 (1986), and 668 F.Supp. 163 (1987). On this appeal, defendants contend that continued application of section 405.-551(e) was not arbitrary and capricious. For the reasons that follow, the judgment of the district court is affirmed. BACKGROUND The reimbursement rate under Medicare Part B is based upon the “reasonable charge” for a particular medical service. 42 U.S.C. § 1395u(b). Pursuant to section 1395u(b), and the regulations promulgated thereunder, the reasonable charge is equal to the lowest of the following: (1) the actual charge billed by the physician; (2) the “prevailing charge” for similar services in the same locality, 42 C.F.R. § 405.504; and (3) the treating physician’s “customary charge.” Id. § 405.503(a). In March- of 1983, the Secretary established a regulation concerning the calculation of customary charges for physicians who converted to direct billing: If a physician who has been compensated by or through a provider (or other entity) for physician services to individual patients" }, { "docid": "1895032", "title": "", "text": "office' [of Medicaid Policy' and Planning] and as identified by non-emergency diagnosis codes, that- is provided in an emergency room, shall be paid based upon a non-emergency setting (for example, a clinic) fee schedule established by the office. This fee schedule amount will be equal to the Indiana Medicaid statewide median amount paid per service during fiscal year 1992. Id. Whether this methodology, which reimburses hospitals for emergency care equal to the Indiana Medicaid statewide median amount paid per service during fiscal year 1992, and which compensates, under a similar non-emergency fee schedule, service provided in an emergency room, but which is determined to be non-emergency service, works a “taking” of the hospital’s property without due process of law must be determined by reference to the analysis set forth by the Supreme Court in Penn Central. See 438 U.S. at 124, 98 S.Ct. at 2659. This analysis raises questions of fact which are not capable of resolution by this Court at this stage in the proceedings. While the materials sub mitted in support and in opposition to Defendants’ Motions for Summary Judgment may be considered at this stage, these pleadings, depositions and affidavits do not “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). Accordingly, Defendants’ Motion to Dismiss Count IV or in the Alternative for Summary Judgment is DENIED as to the Plaintiff, Methodist, and is GRANTED as relates to the individual physician-Plaintiffs. Count V — Title VI of the Civil Rights Act of 1964 Count V of the Complaint alleges that “the new rules will result in unlawful discrimination because the inadequacy of the reimbursement rates will restrict the quantity, quality, and access to services to Medicaid patients and such reductions in medical services will result in a disparate impact on Medicaid recipients in violation of the Civil Rights Act of 1964, Title VI____” (Complaint, ¶ 122.) Based on this allegation, Defendants contend that Plaintiffs lack standing to maintain a Title VI action, as they cannot raise these issues" } ]

[ { "docid": "23362902", "title": "", "text": "SELYA, Circuit Judge. This appeal presents a question concerning the procedural path that must be followed to prosecute a private action for a claimed violation of Title I of the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1990). Because the district court dismissed the case for lack of subject matter jurisdiction, Fed. R.Civ.P. 12(b)(2), our review is plenary. See BIW Deceived v. Local S6, 132 F.3d 824, 830 (1st Cir.1997). In carrying out that task, we draw the underlying facts from the plaintiffs’ complaint (despite the defendant’s denial of several key aspects of the plaintiffs’ account). See Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). Plaintiff-appellant Evelyn Bonilla worked as a sales clerk in a furniture store. She underwent a surgical laminec-tomy in May 1997 and spent several weeks recuperating, returning to work on August 1. Since her regular routine required her to climb stairs in a two-story building and to move heavy furniture, she sought an accommodation from her employer, defendant-appellee Muebles J.J. Alvarez, Inc. (Alvarez). She contends that Alvarez refused her request, ordered her to stay away until she had recovered fully, and told her that she would be relegated to part-time work upon her return. To make a tedious tale tolerably terse, the appellant left that day and never returned. Instead, she sued Alvarez ten months later, claiming a violation of the ADA. Alvarez asked the district court to dismiss the suit on the ground that the appellant had neither filed a claim with, nor obtained a right-to-sue letter from, either the Equal Employment Opportunity Commission (EEOC) or the Department of Labor of the Commonwealth of Puerto Rico. See 42 U.S.C. § 12117 (incorporating by reference, inter alia, 42 U.S.C. § 2000e-5(f)(1)). The appellant replied that the ADA did not require such antecedent steps. The district court agreed with Alvarez and dismissed the case. We now consider whether administrative action must be taken as a prerequisite to filing a federal suit under Title I of the ADA. The appellant contends that filing a claim with the EEOC before bringing an ADA case in" } ]

[ { "docid": "495101", "title": "", "text": "740 n. 3 (8th Cir.1996) (noting that ADA incorporates by reference the powers, remedies, and procedures set forth in Title VII, which requires employees claiming discrimination to file a charge with the appropriate administrative agency, and bars suits until the employee has received a right-to-sue letter); Luna v. Walgreens, 888 F.Supp. 87, 88 (N.D.Ill.1995) (filing discrimination charge with EEOC is condition precedent to filing ADA action in federal court); Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994) (procedure of filing charge with EEOC and receiving right-to-sue letter before bringing an ADA action is not jurisdictional, but plaintiff “must exhaust these administrative remedies before suing in federal court”); Osborn v. E.J. Brach, Inc., 864 F.Supp. 56, 58 (N.D.Ill.1994) (before filing ADA action against employer, employee must file timely EEOC charge and receive right-to-sue letter); James v. Texas Dept. of Human Services, 818 F.Supp. 987, 990 (N.D.Tex.1993) (ADA plaintiffs administrative remedies will be deemed exhausted upon her receipt of right-to-sue letter from Texas Human Rights Commission and submission of letter to court). We join those courts in holding that an employee must comply with the ADA’s administrative prerequisites prior to commencing an action in federal court against her employer for violation of the ADA As the district court correctly noted, the ADA incorporates by reference the procedures applicable to actions under Title VII, 42 U.S.C. § 2000e, et seq. It provides: The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, and 2000e-9 of this title shall be the powers, remedies, and procedures this sub-chapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this sub-chapter. 42 U.S.C. § 12117(a). Section 2000e-5(e)(l) provides that, before a plaintiff can commence a civil action under Title VII in federal court, she must file a timely charge with the EEOC, or with a state or local agency with authority to grant or seek relief from the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); see, e.g., Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863" }, { "docid": "3944532", "title": "", "text": "MEMORANDUM OPINION AND ORDER FITZWATER, District Judge. Defendant moves to dismiss plaintiff’s amended complaint on the ground that it pleads a 42 U.S.C. § 1981 claim that is time-barred. Defendant contends the amendment cannot relate back as permitted by Fed.R.Civ.P. 15(c) because the underlying Title VII suit is also untimely. The court concludes that the Title VII action is not time-barred and denies the motion to dismiss. I. Plaintiff, Kevin McClelland (“McClel-land”), was discharged by defendant, Her-litz, Inc. (“Herlitz”), on April 8, 1986 and thereafter filed a discrimination complaint with the EEOC. On March 28, 1987 the EEOC issued a right-to-sue letter that McClelland received on March 25. On June 10, 1987 McClelland applied with this court for permission to proceed in forma pau-peris by tendering to the clerk of court his proposed complaint and IFP application. On June 25, 1987 the 90-day period within which McClelland was required to file suit, see 42 U.S.C. § 2000e-5(f)(l), expired. On July 26, 1987 the magistrate granted leave to proceed IFP and referred the action to a judge of this court. On July 27 the clerk of court filed plaintiffs pro se complaint. Plaintiff thereafter retained counsel and on November 1, 1988 filed a second amended complaint in which he alleges for the first time a 42 U.S.C. § 1981 claim. The pleading was filed in excess of two years following the occurrence of the alleged discriminatory act. Herlitz contends the amended complaint cannot relate back to the date the complaint was filed because the original Title VII claim is itself time-barred. II. A. To support its contention that the underlying Title VII claim is untimely, Herlitz first relies upon Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), and Firle v. Mississippi State Dept. of Education, 762 F.2d 487 (5th Cir.1985), and argues that plaintiff did not submit the necessary documents to constitute the filing of “a civil action.” Section 2000e-5(f)(1) requires an aggrieved party to file “a civil action” within 90 days after receiving notice of his right to sue. The" }, { "docid": "7200820", "title": "", "text": "the complaint within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed. 42 U.S.C. § 2000e — 5(f)(1); see also Amiri v. Stoladi Prop. Grp., 407 F.Supp.2d 119, 123 (D.D.C.2005); Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. 94, 97 (D.D.C.1995) (noting that “[t]his statute of limitations provision requires that, in order to maintain a civil suit under Title VII, a party must file a complaint within ninety days after receiving a right-to-sue letter from the EEOC.”) (citing 42 U.S.C. § 2000e-5(f)(l)). A court may dismiss a suit for missing the deadline by one day. See Woodruff v. Peters, 482 F.3d 521, 525 (D.C.Cir.2007) (citing Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C.2006)). This 90-day, non-jurisdictional time limit functions like a statute of limitations and is subject to waiver, estoppel and equitable tolling. See Wiley, 436 F.Supp.2d at 96 (citing Mondy v. Sec. of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)); Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) (“[Functioning like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver.”); see also Ruiz v. Vilsack, 763 F.Supp.2d 168, 171 (D.D.C.2011) (citing Smith-Haynie v. District of Columbia, 155 F.3d 575, 577-80 (D.C.Cir.1998)). Moreover, the fact that a plaintiff is a pro se litigant does not exempt him from the 90-day statute of limitations. Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. at 97. “No matter how slight the tardiness, a court is not at liberty to disregard the 90-day deadline out of a vague sympathy for any particular plaintiff.” Turner v. Afro-American Newspaper Co., 572 F.Supp.2d 71, 73 (D.D.C.2008) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)). III. DISCUSSION The defendant claims that the plaintiffs Complaint was untimely because, by the defendant’s calculations, the plaintiff waited more than 90 days to initiate suit after receiving his right-to-sue notice from the EEOC. The plaintiff argues that his suit is timely because he attempted to initiate this case by filing an application to proceed in forma" }, { "docid": "4608693", "title": "", "text": "issue of material fact is presented, a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. Walther v. Bank of New York, 772 F.Supp. 754 (S.D.N.Y.1991). However, once the moving party has met its initial burden of demonstrating the absence of a material issue of fact “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). 1. Title YII Plaintiff brings this action, inter alia, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that defendants discriminated against him on the basis of religion. Third Amended Complaint at I. Defendants argue, inter alia, that the Title VII claim should be dismissed as time-barred, or, in the alternative, dismissed as to certain defendants for failure to name these defendants as respondents in the EEOC complaint. To be timely, a Title VII claim must be filed in federal court within 90 days of receipt of the “right-to-sue” letter. 42 U.S.C. § 2000e — 5(f)(1); Baldwin County Welcome Center v. Brown, 466 U.S. 147,149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984). Failure .to comply with this time requirement will result in dismissal of the complaint. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Sheehan v. Purolater Courier Corp., 676 F.2d 877, 881 (2d Cir.1981), cert, denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 216 (1988); Brown v. Enzyme Dev. Div. of Biddle Sawyer Corp., 780 F.Supp. 1025, 1026 (S.D.N.Y.1992). Plaintiff had 90 days from receipt of the EEOC right-to-sue letter to file this Title VII action. In a Title VII case brought by a pro se plaintiff, the Second Circuit stated that in the absence of a recognized equitable ' consideration, even one day over this 90-day period would be too late. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (dismissal of pro se" }, { "docid": "19105507", "title": "", "text": "motion should be granted. BACKGROUND On May 13, 1999, plaintiff filed this action pro se for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112-12117. She alleges that she was denied job accommodations, promotions, lateral placements and transfers because of her religion (Christian) and disability (back problems), and was sexually harassed,' during her employment at the Erie County Department of Social Services (“DSS”). She also claims that her union (CSEA Local 815) failed to process' her grievances against DSS, and failed to assist her with her efforts to obtain promotions, transfers or accommodations (see Item 1). On July 19, 1999, DSS answered the complaint. On August 3, 1999, CSEA Local 815 filed a motion to dismiss the complaint in lieu of an answer, raising the following grounds: 1. Plaintiff has not obtained a “right-to-sue” notice from the Equal Employment Opportunity Commission (“EEOC”), and has not otherwise exhausted administrative procedures, ■ with re'spect to her claims against the union. 2. Plaintiffs claims against the union are time-barred. 3. The complaint fails to state a claim against the union under Title VII or the ADA upon which relief can be granted. Each of these grounds is discussed in turn below: DISCUSSION 1. Exhaustion of Administrative Procedures. In Vital v. Interfaith, Medical Center, 168 F.3d 615 (2d Cir.1999), the Second Circuit recently affirmed a district court’s dismissal of a Title VII claim against the plaintiffs union because the union was not named in the charge that the plaintiff filed with the EEOC, or in the right to sue letter that the EEOC issued to the plaintiff. As explained by the Circuit, a Title VII complainant must first file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court. Id. at 619 (citing 42 U.S.C. § 2000e — 5(f)(1)). The purpose of this requirement is “to notify the charged party of the alleged violation and also [to] bring[ ]" }, { "docid": "12882930", "title": "", "text": "may be granted. The court will consider each argument in turn. 1. Administrative Exhaustion Defendants first argue that the Title II claim must be dismissed because Plaintiff failed to exhaust his administrative remedies, i.e., he failed to obtain a right to sue letter from the Equal Employment Opportunity Commission and timely file suit thereafter. In the court’s opinion, Defendants’ argument is wrong. Every decision unearthed by the court with respect to this issue, including two from this district, holds that administrative exhaustion is not required for a Title II claim. See Downs v. Massachusetts Bay Tramp. Auth., 13 F.Supp.2d 130, 134 (D.Mass.1998) (Lasker, J); Flippin v. Town of Norton, No. 97-12248, 1999 WL 191695, at *1 (D.Mass. Mar. 26, 1999) (O’Toole, J.). Indeed, the only ADA ex haustion case cited by Defendants, Chico-Velez v. Roche Products, Inc., 139 F.3d 56 (1st Cir.1998), is a Title I case. However, unlike Title I, which adopts the exhaustion requirements found in Title VII of the Civil Rights Act of 1969 (see 42 U.S.C. § 12117(a)), Title II follows the administrative procedures of the Rehab Act (see 42 U.S.C. § 12133), which has no such prerequisite (see 29 U.S.C. § 794(a)). See Zimmerman v. State of Oregon Dep’t of Justice, 170 F.3d 1169, 1177-78 (9th Cir.1999). See also Brennan v. King, 139 F.3d 258, 268 n. 12 (1st Cir.1998) (“[T]he Rehabilitation Act does not require exhaustion. [It] derives its procedural requirements from Title VI [of the Civil Rights Act], which does not have an exhaustion requirement.”). 2. State Sovereign Immunity In addition, Defendants assert that Congress did not validly abrogate state sovereign immunity in Title II. Relying on Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) — which held that state sovereign immunity was not validly abrogated in Title I of the ADA — Defendants contend that Plaintiffs Title II claim is likewise barred by the eleventh amendment to the United States Constitution. Once again, the court disagrees. Recently, District Judge Nancy Gertner described the evolving jurisprudence in the area of Title II" }, { "docid": "23472977", "title": "", "text": "charge ... by the person claiming to be aggrieved.... 42 U.S.C. § 200Oe — 5(f)(1) (1982) (emphasis added). This statute of limitations contains no provision regarding service of process; it requires only that a civil action be “brought” within ninety days after the plaintiff receives notice of his right to sue. In fact, the Supreme Court has defined “bringing” an action for purposes of Title VII as “commencing” an action for purposes of Fed.R.Civ.P. 3. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984). Rule 3 states that “[a] civil action is commenced by filing a complaint with the court.” (Emphasis added.) Service of process is not required to commence an action under Rule 3 and therefore is not required to bring an action under Title VII. The district court apparently considered Rule 4’s service-of-process requirement to be part of, or bound up with, Title VII’s ninety-day statute of limitations. That view, however, mischaracterizes section 2000e-5(f)(l). The plain language of that section and the Supreme Court’s opinion in Baldwin make clear that a Title VII plaintiff complies with the ninety-day statute of limitations simply by filing the complaint. Certainly, a plaintiff must still comply with Rule 4(j) and serve process within 120 days after filing the complaint. If the plaintiff fails to comply with Rule 4(j), the district court may dismiss the case without prejudice. If the ninety-day period has passed, then section 2000e-5(f)(l) would bar prosecution of the action. Cf. Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1307 (5th Cir.1985) (“the fact that limitations has run does not prevent a Rule 4(j) dismissal”). Rule 4(j) and section 2000e-5(f)(l), however, are not inherently intertwined: compliance with section 2000e-5(f)(l) is not dependent upon compliance with Rule 4(j). We therefore hold that Pardazi, by filing his complaint with the district court within the ninety-day limitations period, completely satisfied section 2000e-5(f)(l). Consequently, the district court could not grant summary judgment on the ground that Pardazi provisionally, but not completely, satisfied section 2000e-5(f)(l). This holding, however, does not end the matter. Regardless" }, { "docid": "5312294", "title": "", "text": "SELYA, Circuit Judge. Defendant-appellee Roche Products, Inc. (Roche) discharged plaintiff-appellant Félix Chico-Vélez on April 15, 1994. Chico-Vélez thereafter lodged a claim of discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1994). Following exhaustion of the ADA’s mandatory administrative process, the cashiered employee hailed Roche into federal district court. His complaint set forth a cause of action under the ADA and added several claims under local law. Roche denied the material allegations of the complaint and contended that it had fired Chico-Vélez for just cause. After two sets of counsel withdrew in fairly rapid succession, the plaintiff experienced difficulty securing a replacement. The district court, in the person of Judge Fusté, afforded Chico-Vélez numerous warnings and extended several deadlines to accommodate him. When the plaintiff nevertheless failed either to obtain' another lawyer or to proclaim a desire to proceed .pro se, Judge Fusté dismissed the suit for want of prosecution. In this order, filed on September 19, 1996, the judge declared that the dismissal would operate without prejudice. No useful purpose would be served by recounting the details of the dismissed proceeding, save to say that Chieo-Vélez’s assertion of a cause of action under the ADA comprised the jurisdictional impetus that boosted the case into federal court. The plaintiff did not appeal from the order of dismissal, but, rather, secured new counsel and filed a new action in the district court on December 27, 1996. This case was assigned to Judge Casellas’s calendar. Once again, federal jurisdiction depended on the plaintiffs ADA claim. Roche moved to dismiss for want of subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), alleging that Chico-Vélez had not brought suit within ninety days following the issuance of his right-to-sue letter by the Equal Employment Opportunity Commission (EEOC) on May 18, 1995. See 42 U.S.C. § 12117(a) (subjecting ADA claims to the procedural requirements of Title VII); 42 U.S.C. § 2000e-5 (1994) (ordaining that a civil action for covered violations must be filed in the district court within ninety days of the claimant’s receipt of a right-to-sue letter from the EEOC); 29 C.F.R. § 1601.28(e)(1)" }, { "docid": "22420101", "title": "", "text": "the Title VII and ADEA Claims In order to be timely, a claim under Title VII or the ADEA must be filed within 90 days of the claimant’s receipt of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984) (per curiam); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir.1994). Normally it is assumed that a mailed document is received three days after its mailing. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. at 148 n. 1, 104 S.Ct. at 1724 n. 1 (citing Fed.R.Civ.P. 6(e) (“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.”))- And normally it may be assumed, in the absence of challenge, that a notice provided by a government agency has been mailed on the date shown on the notice. See Baldwin County Welcome Center v. Brown, 466 U.S. at 148 & n. 1, 104 S.Ct. at 1724 & n. 1. Although such presumptions are convenient and reasonable in the absence of evidence to the contrary, the Baldwin case, on which the district court in the present case relied, did not suggest that they are irrebuttable. While the Baldwin Court noted the presumed date of receipt, the issue in that case was not the date on which the right-to-sue letter had been received but rather whether the forwarding of that letter by the plaintiff to the district court constituted the commencement of the lawsuit. See, e.g., id. at 150 n. 4, 104 S.Ct. at 1725 n. 4. If a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption" }, { "docid": "22420100", "title": "", "text": "after receiving her right-to-sue letter, thus exceeding the ninety-day statute of limitations by six days. The EEOC mailed notice to Sherlock on February 15, 1995. A presumption exists that an EEOC notice is received three days after its mailing. Baldwin County Welcome Center, 466 U.S. at 148 n. 1 [104 S.Ct. at 1724 n. 1], Accordingly, Sherlock is presumed to have received her right-to-sue letter on February 18, 1995. Because Sherlock commenced this action on May 25, 1995 — ninety-six days later — her Title VII and ADEA causes of action must be dismissed as untimely. District Court Opinion at 4. Having dismissed all of Sherlock’s federal claims, the court also declined to exercise supplemental jurisdiction over her state-law claims. Judgment was entered dismissing the action, and this appeal followed. II. DISCUSSION On appeal, Sherlock contends principally that the court erred in finding her Title VII and ADEA claims time-barred. We conclude that, on the basis of the present record, the court erred in so ruling as a matter of law. A. The Timeliness of the Title VII and ADEA Claims In order to be timely, a claim under Title VII or the ADEA must be filed within 90 days of the claimant’s receipt of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984) (per curiam); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir.1994). Normally it is assumed that a mailed document is received three days after its mailing. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. at 148 n. 1, 104 S.Ct. at 1724 n. 1 (citing Fed.R.Civ.P. 6(e) (“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.”))- And normally it may be assumed, in the absence of challenge, that a notice provided" }, { "docid": "11489255", "title": "", "text": "claim first with the EEOC and the New York State Division of Human Rights before pursuing a claim under Title VII. 42 U.S.C. § 2000e-5(e); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir.1992); Kirkland v. Bianco, 595 F.Supp. 797, 799 (S.D.N.Y.1984). Plaintiffs must also receive a right-to-sue letter from the EEOC to proceed with a Title VII claim in federal court. 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1983). While filing with the EEOC or the state agency is not a jurisdictional prerequisite, timely filing is a “requirement that, like the statue of limitations, is subject to waiver, estoppel and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Kirkland v. Bianco, 595 F.Supp. at 798-99 & n. 2; Hladki v. Jeffrey’s Consol. Ltd., 652 F.Supp. 388, 392 (E.D.N.Y.1987). Zipes does not stand for the proposition, however, that a plaintiff bringing a Title VII claim need not comply with the provision’s requirements. Baldwin County Welcome Ctr., 466 U.S. at 152 n. 6, 104 S.Ct. at 1726 n. 6. In the absence of such a requirement, a plaintiff could circumvent Congress’ administrative scheme which was created to facilitate efficient processing of Title VII claims. Moche v. City Univ. of New York, 781 F.Supp. 160, 167 (E.D.N.Y.1992) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147 (1974)). Consequently, courts within this Circuit have been “reluctant to hear claims that were not originally filed with the EEOC.” See, e.g., Moche, 781 F.Supp. at 167; Dennis v. Pan Am. World Airways, Inc., 746 F.Supp. 288, 290 (E.D.N.Y.1990); Littman v. Firestone Tire & Rubber Co., 709 F.Supp. 461, 464 (S.D.N.Y.1989); McPartland v. American Broadcasting Cos., 623 F.Supp. 1334, 1339 (S.D.N.Y.1985). Without providing reasons that would trigger equitable modification of the statutory requirement to file a claim with the EEOC and obtain a right-to-sue letter from the EEOC, a plaintiff cannot state a Title VII claim in federal court unless the plaintiff" }, { "docid": "3944533", "title": "", "text": "judge of this court. On July 27 the clerk of court filed plaintiffs pro se complaint. Plaintiff thereafter retained counsel and on November 1, 1988 filed a second amended complaint in which he alleges for the first time a 42 U.S.C. § 1981 claim. The pleading was filed in excess of two years following the occurrence of the alleged discriminatory act. Herlitz contends the amended complaint cannot relate back to the date the complaint was filed because the original Title VII claim is itself time-barred. II. A. To support its contention that the underlying Title VII claim is untimely, Herlitz first relies upon Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), and Firle v. Mississippi State Dept. of Education, 762 F.2d 487 (5th Cir.1985), and argues that plaintiff did not submit the necessary documents to constitute the filing of “a civil action.” Section 2000e-5(f)(1) requires an aggrieved party to file “a civil action” within 90 days after receiving notice of his right to sue. The rationale of Brown is that nothing in Title VII abrogates the requirement of Fed.R.Civ.P. 3 that a civil action be commenced by filing a complaint. Because a complaint consists of “a short and plain statement of the claim,” see Rule 8(a)(2), the Court held in Brown that the filing of a right-to-sue letter is alone insufficient to constitute the filing of a civil action within the meaning of § 2000e-5(f)(l). 466 U.S. at 149-50, 104 S.Ct. at 1725. In Firle the plaintiff filed the notice of right-to-sue and a request for appointment of counsel, but did not file a pleading stating his claim until well after the expiration of the 90-day period. The Fifth Circuit found this to be insufficient under the reasoning of Brown. 762 F.2d at 488. This court disagrees, however, that Brown and Firle are applicable to the present action. The Fifth Circuit suggested in dictum in Firle, 762 F.2d at 489, and the Eleventh Circuit held in Judkins v. Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir.1984) (on rehearing), that" }, { "docid": "13678211", "title": "", "text": "includes additional claims, the new claims allege new causes of actions which can only be entertained by this Court under supplemental jurisdiction. The federal question which confers subject matter jurisdiction upon this Court is the claim filed pursuant to the A.D.A. We must determine first whether plaintiff may properly invoke federal jurisdiction in the present case. Filing Procedures Pursuant to § 12117(a) of the A.D.A., 42 U.S.C. § 12117(a), any person alleging discrimination on the basis of disability is entitled to the remedies, and must abide by the procedures, set forth by § 2000e-5 of Title VII. Therefore, a civil action under the A.D.A. must be filed at the pertinent United States District Court within 90 days of receipt from the Equal Employment Opportunity Commission (EEOC) of the authorization to litigate or “right to sue” letter. See 42 U.S.C. § 2000e-5; 29 C.F.R. § 1601.28(d). Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Failure to Comply with the 90-day Filing Period Bars the Corresponding Civil Action The 90-day filing period is not a jurisdictional requirement; rather, it resembles a statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Accordingly, failure to file the complaint before the United States District Court within 90 days of receiving the right-to-sue letter precludes the corresponding civil action. The only exception to this bar is when equitable factors merit the tolling the 90-day period. However, the First Circuit has held that courts must “hew to a 'narrow view’ of equitable exceptions to Title VII limitations periods.” Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir.1989); Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 185 (1st Cir.1989). Moreover, the Supreme Court has limited the equitable tolling of Title VII statute of limitations requirements essentially to situations where (1) the claimant lacks actual or constructive notice of the filing requirement; (2) a court has led a plaintiff to believe that he has done all that its required of him; (3) affirmative misconduct on the" }, { "docid": "7113422", "title": "", "text": "that Captain Morrison did initiate a courtesy phone call to Edwards further buttresses the idea that the Aggie Pilots did not discriminate against Edwards on the basis of race. . Moreover, the Court holds that Edwards’ Title VII claims relating to the 2000 deputy pilot selection process, including his vaguely averred retaliation claim, are time-barred. Edwards filed a charge of discrimination with the EEOC on February 6, 2001. The EEOC then sent to Edwards by certified mail a right-to-sue letter signed and dated on February 13, 2001, requiring Edwards to file suit within 90 days of receiving the letter. See 42 U.S.C. § 2000e-5(f)(l). Edwards, however, did not file the instant lawsuit against Defendants until June 6, 2001, in excess of the 90-day limitations period. Edwards argues that his Title VII claims are not time-barred because Defendants have failed to show the exact date that Edwards received the letter, and the limitations period does not commence until the grievant actually receives the right-to-sue letter. The Court disagrees. Although Defendants carinot prove the precise date that Edwards received the EEOC letter (in large part because Edwards testifies that he does not remember when he received the letter), there nevertheless exists a presumption in Title VII cases that an EEOC right-to-sue letter is received within three to five days after the letter is mailed. See, e.g., Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (presuming receipt within three days of delivery based upon Fed.R.Civ.P. 6(e)); Lozano v. Ashcroft, 258 F.3d 1160, 1167 (10th Cir.2001) (presuming receipt no more than five days after mailing date); Coen v. Riverside Hosp., 2 Fed.Appx. 449, 450-51 (6th Cir.2001) (holding that the 90-day limitations period begins running on the fifth day following the EEOC’s mailing); Ocasio v. Fashion Inst. of Tech., 9 Fed.Appx. 66, 68 (2d Cir.2001) (applying “usual presumption that the letter was received within three days after mailing”); Seit-zinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999) (same); Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 525-26 (2d Cir.1996) (same)." }, { "docid": "4608695", "title": "", "text": "complaint filed 97 days after receipt) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir.1982)); see also, Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 h. 1,104 S.Ct. 1723,1724 n. 1, 80 L.Ed.2d 196 (1984) (dismissing pro se complaint for failure to file within 90 days, stating “[p]roeedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts but of a vague sympathy for particular litigants”). Plaintiffs right-to-sue letter is dated January 17, 1992. Plaintiff alleges in the most recent Complaint that he received this letter on January 17, 1992. Third Amended Complaint at II. However, in a prior Complaint, he alleged receipt of the letter on January 23, 1992. Second Amended Complaint at 3. Under Fed.R.Civ.P. 6(e), the presumed date of receipt is January 20, 1992, or three days after January 17. Construing the facts in a light most favorable to plaintiff, viz., that plaintiff received the letter six days after it was sent by certi fied mail, this Court will consider January 23, 1992 as the date of receipt. Plaintiff filed this Title VII action on April 23, 1992, which is 91 days after receipt of the right-to-sue letter. Therefore, because plaintiff fails to allege any equitable considerations and because this Court does not discern any, this Title VII action is'dismissed for failure to file within 90 days of receipt of the right-to-sue letter. Baldwin County Welcome Center v. Broum, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984); Johnson v. Al Tech Specialties Steel Corp., 73Í F.2d 143, 146 (2d Cir.1984). Additionally, as a general rule, one not named in the EEOC complaint may not be sued individually in a later Title VII action. § 2000e-5(f)(l); Giuntoli v. Garvin Guybutler Corp., 726 F.Supp. 494, 497 (S.D.N.Y.1989) (citing Alcena v. Raine, 692 F.Supp. 261, 269 (S.D.N.Y.1988)). An exception exists when there is “substantial identity” between the party named in the EEOC charge and the unnamed individual defendants, and the latter had actual notice that their individual conduct was being investigated. Giuntoli, 726" }, { "docid": "4608694", "title": "", "text": "be filed in federal court within 90 days of receipt of the “right-to-sue” letter. 42 U.S.C. § 2000e — 5(f)(1); Baldwin County Welcome Center v. Brown, 466 U.S. 147,149-50, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984). Failure .to comply with this time requirement will result in dismissal of the complaint. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Sheehan v. Purolater Courier Corp., 676 F.2d 877, 881 (2d Cir.1981), cert, denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 216 (1988); Brown v. Enzyme Dev. Div. of Biddle Sawyer Corp., 780 F.Supp. 1025, 1026 (S.D.N.Y.1992). Plaintiff had 90 days from receipt of the EEOC right-to-sue letter to file this Title VII action. In a Title VII case brought by a pro se plaintiff, the Second Circuit stated that in the absence of a recognized equitable ' consideration, even one day over this 90-day period would be too late. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (dismissal of pro se complaint filed 97 days after receipt) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir.1982)); see also, Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 h. 1,104 S.Ct. 1723,1724 n. 1, 80 L.Ed.2d 196 (1984) (dismissing pro se complaint for failure to file within 90 days, stating “[p]roeedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts but of a vague sympathy for particular litigants”). Plaintiffs right-to-sue letter is dated January 17, 1992. Plaintiff alleges in the most recent Complaint that he received this letter on January 17, 1992. Third Amended Complaint at II. However, in a prior Complaint, he alleged receipt of the letter on January 23, 1992. Second Amended Complaint at 3. Under Fed.R.Civ.P. 6(e), the presumed date of receipt is January 20, 1992, or three days after January 17. Construing the facts in a light most favorable to plaintiff, viz., that plaintiff received the letter six days after it was sent by certi fied mail, this Court will" }, { "docid": "5312295", "title": "", "text": "be served by recounting the details of the dismissed proceeding, save to say that Chieo-Vélez’s assertion of a cause of action under the ADA comprised the jurisdictional impetus that boosted the case into federal court. The plaintiff did not appeal from the order of dismissal, but, rather, secured new counsel and filed a new action in the district court on December 27, 1996. This case was assigned to Judge Casellas’s calendar. Once again, federal jurisdiction depended on the plaintiffs ADA claim. Roche moved to dismiss for want of subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), alleging that Chico-Vélez had not brought suit within ninety days following the issuance of his right-to-sue letter by the Equal Employment Opportunity Commission (EEOC) on May 18, 1995. See 42 U.S.C. § 12117(a) (subjecting ADA claims to the procedural requirements of Title VII); 42 U.S.C. § 2000e-5 (1994) (ordaining that a civil action for covered violations must be filed in the district court within ninety days of the claimant’s receipt of a right-to-sue letter from the EEOC); 29 C.F.R. § 1601.28(e)(1) (1997) (explicating procedure); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1984). The district court granted Roche’s motion and denied the plaintiffs subsequent request for reconsideration. This appeal followed. We need not tarry. Undertaking de novo review, see Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15,17 (1st Cir.1992), we believe that this is a suitable case in which to act upon our frequently expressed belief that “when a lower court produces a comprehensive, well-reasoned decision, an appellate court should refrain from writing at length to no other end than to hear its own words resonate.” Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d 218, 220 (1st Cir.1996); accord Jose Ayala v. Union De Tronquistas, 74 F.3d 344, 345 (1st Cir.1996); In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir.1993). Hence, we affirm the judgment for substantially the reasons set forth in the opinion below. See Chico Vélez v. Roche Prods., Inc., 971" }, { "docid": "12882929", "title": "", "text": "case. A. Title II of the ADA “Congress enacted the ADA ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ ” Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 (1st Cir.2000) (quoting 42 U.S.C. § 12101(b)(1)). Title II of the ADA, the provision at issue here, “prohibits discrimination against qualified individuals with disabilities in all programs, activities and services of public entities.” Navedo v. Maloney, 172 F.Supp.2d 276, 287 (D.Mass.2001). While efforts have been made to amend Title II (and the Rehab Act) to exclude prisoners from its requirements, see 2001 Cong. U.S. § 33, 107th Congress, 1st Session (Jan. 22, 2001), thus far those attempts have been unsuccessful. Defendants offer four arguments with respect to Plaintiffs Title II claim: (1) Plaintiff failed to exhaust his administrative remedies; (2) state sovereign immunity bars the claim; (3) the individual defendants must be dismissed as there is no individual liability under Title II; and (4) the complaint fails to state a Title II claim upon which relief may be granted. The court will consider each argument in turn. 1. Administrative Exhaustion Defendants first argue that the Title II claim must be dismissed because Plaintiff failed to exhaust his administrative remedies, i.e., he failed to obtain a right to sue letter from the Equal Employment Opportunity Commission and timely file suit thereafter. In the court’s opinion, Defendants’ argument is wrong. Every decision unearthed by the court with respect to this issue, including two from this district, holds that administrative exhaustion is not required for a Title II claim. See Downs v. Massachusetts Bay Tramp. Auth., 13 F.Supp.2d 130, 134 (D.Mass.1998) (Lasker, J); Flippin v. Town of Norton, No. 97-12248, 1999 WL 191695, at *1 (D.Mass. Mar. 26, 1999) (O’Toole, J.). Indeed, the only ADA ex haustion case cited by Defendants, Chico-Velez v. Roche Products, Inc., 139 F.3d 56 (1st Cir.1998), is a Title I case. However, unlike Title I, which adopts the exhaustion requirements found in Title VII of the Civil Rights Act of 1969 (see 42 U.S.C. § 12117(a)), Title II follows" }, { "docid": "11489254", "title": "", "text": "representation, which has not occurred in this case, may an employee “step into the shoes of the Union.” Lofton v. United States Postal Serv., 592 F.Supp. 36, 37, 39 (S.D.N.Y. 1984). Article V, § 4 of the collective bargaining agreement explicitly provides that “All union claims are brought by the Union alone and no individual shall have the right to compromise or settle any claim without the written permission of the Union.” Thus, Hogan lacks standing to assert a claim to vacate the arbitrator’s award. Accordingly, the defendants’ motion to dismiss Hogan’s request to vacate the arbitrator’s award is granted. VII. Hogan’s final allegation was that he was discharged because of his religion or ethnicity, in violation of Title VII. 42 U.S.C. § 2000e-5 et seq. Hogan does not allege that he filed a claim of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) or the New York State Division of Human Rights, and the defendants allege without contradiction that Hogan did not. In New York, a plaintiff must file an employment discrimination claim first with the EEOC and the New York State Division of Human Rights before pursuing a claim under Title VII. 42 U.S.C. § 2000e-5(e); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir.1992); Kirkland v. Bianco, 595 F.Supp. 797, 799 (S.D.N.Y.1984). Plaintiffs must also receive a right-to-sue letter from the EEOC to proceed with a Title VII claim in federal court. 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 1724-25, 80 L.Ed.2d 196 (1983). While filing with the EEOC or the state agency is not a jurisdictional prerequisite, timely filing is a “requirement that, like the statue of limitations, is subject to waiver, estoppel and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Kirkland v. Bianco, 595 F.Supp. at 798-99 & n. 2; Hladki v. Jeffrey’s Consol. Ltd., 652 F.Supp. 388, 392 (E.D.N.Y.1987). Zipes does not stand for the proposition, however, that a plaintiff bringing a Title VII claim need not comply" }, { "docid": "13678210", "title": "", "text": "denied. The Court noted that it “had granted ample time to movant.” Id., Exhibit 7. On August 14, 1996 the Pretrial conference could not be held as plaintiff appeared pro se and asked the Court once again for an additional term to retain counsel. On August 15, 1996, the Court entered an order granting plaintiff a final 10 day extension of time “to conclude the issue of his legal representation. Mr. Chico Velez was informed that if he fails to retain counsel or if counsel fails to make an appearance, the case will be dismissed without prejudice.” The Court set a final deadline of August 26, 1996, that is, a date on which more than one year would have passed from the filing of the case. Id., Exhibit 8. On September 19, 1996 after plaintiff again failed to retain counsel, the Judge Fusté entered judgment dismissing the complaint. Id., Exhibit 9. On December 27, 1996, ninety-seven (97) days after the dismissal of his first complaint, plaintiff filed the present civil action. Although his new complaint includes additional claims, the new claims allege new causes of actions which can only be entertained by this Court under supplemental jurisdiction. The federal question which confers subject matter jurisdiction upon this Court is the claim filed pursuant to the A.D.A. We must determine first whether plaintiff may properly invoke federal jurisdiction in the present case. Filing Procedures Pursuant to § 12117(a) of the A.D.A., 42 U.S.C. § 12117(a), any person alleging discrimination on the basis of disability is entitled to the remedies, and must abide by the procedures, set forth by § 2000e-5 of Title VII. Therefore, a civil action under the A.D.A. must be filed at the pertinent United States District Court within 90 days of receipt from the Equal Employment Opportunity Commission (EEOC) of the authorization to litigate or “right to sue” letter. See 42 U.S.C. § 2000e-5; 29 C.F.R. § 1601.28(d). Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Failure to Comply with the 90-day Filing Period Bars the Corresponding Civil Action The" } ]

[ { "docid": "7680080", "title": "", "text": "collection notices.” See also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997). As we explained in Gammon, a more precise benchmark is the understanding of “the unsophisticated debtor,” a formulation which “assumes that the debt- or is ‘uninformed, naive, or trusting,’ [but] that statements are not confusing or misleading unless a significant fraction of the population would be similarly misled.” Veach v. Sheeks, 316 F.3d 690, 692-93 (7th Cir.2003). The district judge acknowledged that the defendant’s letter had “the potential to confuse an unsophisticated consumer” — called the letter “problematic” and said that it did “a poor job of informing an ‘unsophisticated consumer’ of what the amount of the debt is.” But she thought that this court had established a rule that unless a letter contains an outright contradiction, the plaintiff must present evidence outside of the letter itself and her own testimony. There is no such rule, and it would not be a defensible gloss of the Fan-Debt Collection Practices Act. A letter can be confusing even to a sophisticated reader though it does not contain an outright contradiction — witness the defendant’s letter in this case. Our conclusion does not place debt collectors on a razor’s edge, where if they say too little they violate the Act by failing to disclose the amount of the debt they are trying to collect and if they say too much they violate the Act by confusing the consumer. If the debt collector is trying to collect only the amount due on the date the letter is sent, then he complies with the Act by stating the “balance” due, stating that the creditor “has assigned your delinquent account to our agency for collection,” and asking the recipient to remit the balance listed — and stopping there, without talk of the “current” balance. If, instead, the debt collector is trying to collect the listed balance plus the interest running on it or other charges, he should use the safe-harbor language of Miller: “As of the date of this letter, you owe $_ [the exact amount due]. Because of" } ]

[ { "docid": "17304142", "title": "", "text": "static and not subject to increase through imposition of fees or'accumulation of interest by the debt collector, must the collection notice affirmatively state as much for the debt collector to avoid liability under the FDCPA? Put differently, is the least sophisticated consumer confused by an unadorned statement of the actual balance owed? Plaintiff first argues that a finding in her favor is. required under Avila. In that case, the Second Circuit held that “Section 1692e requires debt collectors, when they notify consumers of their account balance, to-disclose that the balance may increase due to interest and fees.” Avila, 817 F.3d at 74. The Second Circuit later clarified its holding.by finding a violation where the notice included a statement that interest “may include estimated fees and costs” without any further information on how to calculate such fees and costs and about whether those fees and costs were actually accruing. Carlin v. Davidson Fink LLP, 852 F.3d 207, 216 (2d Cir. 2017) (finding a collection letter incomplete where it omitted, inter alia, “an explanation of any fees and interest that will cause the balance to increase.”). In both of those cases, and in cases applying those rulings, the balance amount was subject to change through the addition of interest and/or fees. See, e.g., Balke v. Alliance One Receivables Mgmt., Inc., 16-cv-5624, 2017 WL 2634653, at *5-6 (E.D.N.Y. June 19, 2017) (denying motion to dismiss where notice stated that balance “may be periodically increased,” but was supported only by vague references to “accrued interest or other charges”). Plaintiff argues that Avila is both controlling and analogous. It is neither: Clearly, Avila■ and its progeny require inclusion of explanatory language in a notice letter where the balance due is subject to increase through the accrual of interest or imposition of fees.' Those cases do not, however, require a debt collector to advise a consumer that the balance may increase due to interest or fees where there is not a possibility of that occurring. Post-Avila cases addressing a static balance have found that a debt collector need not advise the consumer of the fact that" }, { "docid": "17304141", "title": "", "text": "2017 WL 1214441, at *4 (E.D.N.Y. Mar. 31, 2017). Defendant has disputed that plaintiff is a consumer within the meaning of .the- statute, claiming to be “without knowledge or information sufficient to ad-; mit or deny” the fact set forth by plaintiff. Similarly, despite' the clear .statement- in the collection letter that it is a “communication from- a debt collector” in an “attempt to- collect a debt,” defendant has disputed plaintiffs statement that it is a debt collector under the FDCPA. Derosa is a “natural person obligated or allegedly obligated to pay any debt,” and thus clearly fits the definition of “consumer,” 15 U.S.G. § 1692a(3). Defendant’s. own statements establish its role as a “debt collector.” See id.§ 1692a(6); The Court finds that plaintiff is. a consumer, and defendant a -debt collector, within the meaning of the statute, and turns to the .question of whether the August 2015 collection notice violated § 1692e. The question raised here is straightforward, but has not yet been directly addressed by the Second Circuit: if a debt amount is static and not subject to increase through imposition of fees or'accumulation of interest by the debt collector, must the collection notice affirmatively state as much for the debt collector to avoid liability under the FDCPA? Put differently, is the least sophisticated consumer confused by an unadorned statement of the actual balance owed? Plaintiff first argues that a finding in her favor is. required under Avila. In that case, the Second Circuit held that “Section 1692e requires debt collectors, when they notify consumers of their account balance, to-disclose that the balance may increase due to interest and fees.” Avila, 817 F.3d at 74. The Second Circuit later clarified its holding.by finding a violation where the notice included a statement that interest “may include estimated fees and costs” without any further information on how to calculate such fees and costs and about whether those fees and costs were actually accruing. Carlin v. Davidson Fink LLP, 852 F.3d 207, 216 (2d Cir. 2017) (finding a collection letter incomplete where it omitted, inter alia, “an explanation of any fees" }, { "docid": "7953522", "title": "", "text": "the amount $599.98 six times on the one-page document. The upper right hand corner contains information about the debt, including “AMOUNT DUE AS OF CHARGE-OFF: $599.98” and “BALANCE DUE: $599.98.” The body of the letter states that Taylor’s account has “been assigned to this agency for collection. We [FRS] are a professional collection agency attempting to collect a debt,... You owe $599.98.” The bottom consists of three payment coupons, each of which . states, “Current Balance: $599.98.” The second and thud letters, dated April 12 and May 10, 2016, respectively, each state the amount $599.98 multiple times. Like the first letter, both again say in the upper right corner “BALANCE DUE: $599.98.” Both contain three payment coupons, all of which again say “Current Balance $599.98.” The second letter states, “As of the date of this notice you owe $599.98.” It also provides that Taylor could “settle [her] account” for less than $599.98 by making one lump sum payment by a certain date or making installment payments on the timeline provided in the letter. The letter elaborates, “This settlement may have tax consequences. Please consult your tax advisor.” The third letter also includes a settlement offer, providing that FRS could “accept a settlement on [Taylor’s account] for $299.99.” As with the April letter, it provides: “This settlement may have tax consequences. Please consult your tax advisor.” B. Plaintiff Christipa Klein Klein obtained a credit card from Bar-clays Bank (“Barclays”), which she used to make purchases for personal or household use. Around the beginning of 2014, she defaulted on her. payments to Barclays. Klein attests that every month that she did not make a full payment, interest and late fees were added to the balance on her Barclays credit card statement. In October 2015, Barclays referred Klein’s account to FRS for collection. FRS sent Klein four letters approximately a month apart regarding her credit card debt. None of the letters refers to interest or fees. FRS’s first letter to Klein, dated October 2, 2015, states in the upper right corner, “AMOUNT DUE AS OF CHARGE OFF: $3171.12” and “BALANCE DUE: $3171.12.'” The" }, { "docid": "7953540", "title": "", "text": "F.3d at 74. The Second Circuit held the plaintiff stated a claim because a reasonable consumer could “be misled into believing that she could pay her debt in full by paying the amount listed on the notice” when interest and fees were continuing to accrue daily after receipt of the notice. Id. at 76. But such confusion is not possible here: Plaintiffs adduce no evidence that paying the stated balance due in their respective letters would not satisfy their debts. As the court in Dick v. Enhanced Recovery Co. stated, the holding in “[Avila] — that it is misleading for a debt collector to list the amount owed without disclosing the fact that said amount is increasing — does not support [the plaintiffs] argument that it is misleading to list the amount owed without affirmatively noting that the amount is not increasing.” No. 15 Civ. 2631, 2016 WL 5678556, at *5 (E.D.N.Y. Sept. 28, 2016). 2. Count Two — Statements Regarding Tax Consequences FRS’s statement in the Taylor letters that the “settlement” for less than the balance due “may have tax consequences” does not violate § 1692e as a matter of law. First, as Plaintiffs concede, the statement accurately states the law; a settlement would constitute a discharge of indebtedness, which the tax payer may be required to report regardless of amount, and which may result in taxable income. See 26 U.S.C. § 61(a)(12); IRS Pub. No. 4731, Screening Sheet for Nonbusiness Credit Card Debt Cancellation (2015), available at https://www.irs.gov/pub/irs-pdf/p4731.pdf. Second, courts that have addressed identical language to that in FRS’s letters have found the statement to be accurate, and held it to be otherwise non-actionable under § 1692e. See Remington v. Fin. Recovery Servs., Inc., No. 16 Civ. 865, 2017 WL 1014994, at *4 (D. Conn. Mar. 15, 2017); Everett v. Fin. Recovery Servs., Inc., No. 16 Civ. 1806, 2016 WL 6948052, at *2, *6 (S.D. Ind. Nov. 28, 2016); see also Dunbar v. Kohn Law Firm SC, No. 17 Civ. 88, 2017 WL 1906748, at *5-6 (E.D. Wis. May 8, 2017) (citing Remington and Everett and holding that" }, { "docid": "7468449", "title": "", "text": "FEINBERG, Circuit Judge. Plaintiff Carmen McStay appeals from the grant of summary judgment by the United States District Court for the Southern District of New York (Carter, J.) to defendant I.C. System, Inc. in plaintiffs putative class action alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA). McStay v. I.C. System, Inc., 174 F.Supp.2d 42 (S.D.N.Y.2001). For the reasons stated below, we affirm. Background Defendant I.C. System, Inc. is a “debt collector” within the meaning of the FDCPA. McStay brought suit alleging that three collection letters she received from I.C. System violated the FDCPA’s provisions requiring debt collectors to notify debtors of their right to dispute the alleged debt, 15 U.S.C. § 1692g, and prohibiting collectors from using false or misleading means to collect a debt, 15 U.S.C. § 1692e. McStay also alleged that I.C. System committed common law fraud. On appeal, McStay has pursued only the claim arising under Section 1692g, which involves the first of the three letters noted above. In that letter, dated February 22, 2000, I.C. System notified McStay that her delinquent account with Dr. Jonathan A. Rhodes had been assigned to it for collection. The first two paragraphs of the letter read: Your delinquent account has been turned over to this collection agency and the balance is due. Please be advised that if after 30 days your account is not paid in full or otherwise closed, the account information will be forwarded to the National Credit Reporting Agencies. This may hinder your ability to obtain credit in the future. At the bottom of the front page, but before the signature line, the letter read, “NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION.” The reverse side contained, in larger size print than the front of the letter, the following language, known as the “validation notice”: IMPORTANT INFORMATION Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days after" }, { "docid": "7953524", "title": "", "text": "body of the letter states that Klein’s account has “been assigned to this agency for collection. We [FRS] are a professional collection agency attempting to collect a debt.... You owe $3171.12.” The bottom of the letter consists of three payment coupons each of which says “Current Balance: $3171.12.” FRS also sent Klein letters in November 2015, December 2015 and January 2016. These subsequent letters- state in the upper right corner “BALANCE DUE: $3171.12,” and each letter contains the three payment coupons, each stating “Current Balance: $3171.12.” The January letter also states in the text, “As of the date of this notice you owe $3171.12. We are authorized to settle the above listed account(s) at a substantial reduction to you. ...” In April 2016, Klein filed a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. On Schedule A/B of the Form 106A/B, she listed “Possible FDCPA claims” in the amount of $1,000. The bankruptcy court discharged her debts in July 2016, which is one month after Plaintiffs filed the Complaint alleging claims under the FDCPA. C. The Statements at Issue Count One alleges that the letters sent to Plaintiffs violated 15 U.S.C. § 1692e on the grounds that they were misleading as to whether or not each Plaintiffs debt was accruing interest or fees. Count Two claims that the letter sent to Taylor violated 15 U.S.C. § 1692e, § 1692e(2)(A), § 1692e(5) and § 1692e(10) based on the sentence, “This settlement may have tax consequences,” alleging that it gives the misimpression that FRS would report the settlement to the IRS. The parties cross-move for summary judgment on both counts. II. STANDARD Summary judgment is appropriate where the record before the court establishes that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists “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, 248, 106" }, { "docid": "6611176", "title": "", "text": "the message), it will have discharged its duty as a matter of law to state clearly the amount due. Id. We hold that a debt collector will not be subject to liability under Section 1692e for failing to disclose that the consumer’s balance may increase due to interest and fees if the collection notice either accurately informs the consumer that the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date. Like the Miller court, we do not hold that a debt collector must use any particular disclaimer. Using the language set forth in Miller will qualify for safe-harbor treatment, as would the language suggested in Jones, 755 F.Supp.2d at 397 n. 7, which may be preferable to the extent it advises the consumer of the specific rate of increase in the debt over time. Moreover, a debt collector who is willing to accept a specified amount in full satisfaction of the debt if payment is made by a specific date could considerably simplify the consumer’s understanding by so stating, while advising that the amount due would increase by the accrual of additional interest or fees if payment is not received by that date. The collection notices at issue here stated only the “current balance” but did not disclose that the balance might increase due to interest and fees. Thus, Plaintiffs have stated a claim that these notices were “misleading” within the meaning of Section 1692e. The district court’s dismissal of this claim is vacated, and we remand for further proceedings consistent with this opinion. CONCLUSION For the foregoing reasons, we VACATE the judgment of the district court insofar as it dismissed plaintiffs’ claim that defendants violated the FDCPA by sending plaintiffs a collection notice stating their “current balance” without disclosing that the balance might increase over time due to interest and fees. For the reasons given in the accompanying summary order, we AFFIRM the judgment of" }, { "docid": "7953521", "title": "", "text": "OPINION AND ORDER LORNA G. SCHOFIELD, District Judge: Plaintiffs Christine Taylor and Christina Klein allege that Defendant Financial Recovery Services, Inc. (“FRS”) violated the Fair ■ Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The parties cross-move for summary judgment. For the following reasons, summary judgment is granted in Defendant’s favor. I. BACKGROUND The following uncontested facts are taken from the parties’ 56.1 Statements and materials submitted on this motion. A. Plaintiff Christine Taylor In 2010, Taylor opened a credit card account, which she used to buy personal and household items. After she defaulted on her credit card payments in 2015, the balance due on her credit card statement increased each month due to interest and fees. In March 2016, the First' National Bank of Omaha, which owned Taylor’s credit card debt, referred her account to FRS for collection. FRS sent Taylor three letters approximately a month apart regarding her credit card debt. None of the letters refers to interest or fees. FRS’s first letter to Taylor, dated March 8, 2016, states the amount $599.98 six times on the one-page document. The upper right hand corner contains information about the debt, including “AMOUNT DUE AS OF CHARGE-OFF: $599.98” and “BALANCE DUE: $599.98.” The body of the letter states that Taylor’s account has “been assigned to this agency for collection. We [FRS] are a professional collection agency attempting to collect a debt,... You owe $599.98.” The bottom consists of three payment coupons, each of which . states, “Current Balance: $599.98.” The second and thud letters, dated April 12 and May 10, 2016, respectively, each state the amount $599.98 multiple times. Like the first letter, both again say in the upper right corner “BALANCE DUE: $599.98.” Both contain three payment coupons, all of which again say “Current Balance $599.98.” The second letter states, “As of the date of this notice you owe $599.98.” It also provides that Taylor could “settle [her] account” for less than $599.98 by making one lump sum payment by a certain date or making installment payments on the timeline provided in the letter. The letter" }, { "docid": "4005539", "title": "", "text": "MEMORANDUM AND ORDER PATRICK F. KELLY, District Judge. This matter is before the Court on cross-motions for summary judgment. The plaintiffs allege the defendant, in attempting to collect a debt which plaintiffs owed to Dodge City Regional Hospital, violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Specifically, plaintiffs claim: (1) defendant’s statements that plaintiffs’ wages could be garnished and the extent to which they could be garnished were in violation of § 1692e(4); (2) defendant’s representation that legal action would be commenced against plaintiffs if the debt was not paid was in violation of §§ 1692e(5) and 1692d; (3) defendant’s inquiry as to whether plaintiffs had filed bankruptcy after learning plaintiffs were represented by an attorney violated §§ 1692c(a)(2) and 1692d; and (4) defendant’s representations after commencement of this action that defendant was not an assignee of the account misled plaintiffs in violation of § 1692e. Plaintiffs assert there are no material facts in issue and that they are entitled to judgment as a matter of law. Defendant agrees there are no genuine issues of material fact, but alleges that plaintiffs’ claims must fail as a matter of law and that defendant is entitled to summary judgment. After hearing arguments by counsel and taking this matter under advisement, the Court has now determined defendant’s motion for summary judgment will be granted and plaintiffs’ motion denied. The reasons are set forth below. Defendant Associated Collection Services, Inc. (ACS) is a “debt collector” as that term is defined in 15 U.S.C. § 1692a(6). On December 23, 1983, Dodge City Regional Hospital turned over to ACS an account in plaintiffs’ names, to be collected by ACS on a 30% contingency basis. The account showed a delinquent balance due of $2,753.20. On December 31, 1983, ACS sent plaintiffs the following form letter: Your creditor has referred your account to our collection agency for immediate collection. [Lists customer number, name of creditor, debtor account number, principal, and amount due]. This is a demand for payment in full today. On January 11, 1984, a representative of the defendant contacted Mrs." }, { "docid": "6611172", "title": "", "text": "will not know whether the debt has been paid in full. The debt collector could still seek the interest and fees that accumulated after the notice was sent but before the balance was paid, or sell the consumer’s debt to a third party, which itself could seek the interest and fees from the consumer. Because the statement of an amount due, without notice that the amount is already increasing due to accruing interest or other charges, can mislead the least sophisticated consumer into believing that payment of the amount stated will clear her account, we hold that the FDCPA requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees. We think that requiring .such disclosure best achieves the Congressional purpose of full and fair disclosure to consumers that is embodied in Section 1692e. It also protects consumers such as plaintiffs who may hold the reasonable but mistaken belief that timely payment will satisfy their debts. In reaching the contrary conclusion, the district court noted, first, that another section of the FDCPA — Section 1692g — requires disclosure only of “the amount of the debt,” not the amount of the debt plus whatever interest and fees may accumulate in the future. See 15 U.S.C. § 1692g(a)(l). But Section 1692g concerns only the disclosures related to a consumer’s need to verify a debt, not the more general disclosures that may be necessary under Section 1692e to ensure that a collection notice is not misleading. The two sections have different aims, and compliance with Section 1692g does not guarantee compliance with Section 1692e, which always applies in connection with the collection of any debt by a debt collector. We do not conclude that Congress’s requiring debt collectors to state “the amount of the debt” in Section 1692g evinces Congressional approval of sending collection notices that lack disclosures about accruing interest and fees. The district court also expressed a concern that requiring debt collectors to disclose this information might lead to more abusive practices, as debt collectors could use the threat" }, { "docid": "7953537", "title": "", "text": "collection notices.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 173 (2d Cir. 2015). Because the least sophisticated consumer standard requires an objective inquiry, it “may be applied as a matter of law and thus is an appropriate issue for disposition on a motion for summary judgment.” Ramirez v. Verizon Commc’ns, Inc., No. 13 Civ. 6000, 2015 WL 917531, at *4 (S.D.N.Y. Feb. 27, 2015); see, e.g., Clomon v. Jackson, 988 F.2d 1314, 1320-21 (2d Cir. 1993) (affirming grant of summary judgment in favor of debtor where the collection letters were “sufficient to give the least sophisticated consumer” a misleading impression under § 1692e). The collection notices are not false, misleading or deceptive as a matter of law. First, Plaintiffs have failed to adduce evidence that the amount stated as due from each Plaintiff is factually inaccurate. The evidence shows that, at the time the debts were referred to collections, Plaintiffs owed $599.98 and $3171.12 respectively and that these amounts remained unchanged during the period the letters at issue were sent. Plaintiffs concede that “the accuracy of Defendant’s collection letters is not at issue” and it is “irrelevant” whether or not their debts in fact accrued interest and fees after being referred to FRS to collection. Second, the statements of the amount due are not misleading or deceptive. By their terms, the letters neither state nor imply that interest or fees are accruing. To the contrary, each letter contains three payment coupons, presumably to accompany payments over time, and each payment coupon states the same static amount due without any increase for the passage of time. Similarly, each successive letter states the same amount due as the prior letter. If anything, the letters imply that interest was not accruing. This is not a situation where the consumer was invited to call to obtain the most current balance, which might suggest that interest was accruing. Cf. Chuway v. Nat’l Action Fin. Servs., Inc., 362 F.3d 944, 947-49 (7th Cir. 2004) (finding misleading a letter that identified the credit card company as a creditor, stating the balance and providing a phone" }, { "docid": "6611166", "title": "", "text": "POOLER, Circuit Judge: The Fair Debt Collection Practices Act (“FDCPA”) prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The question presented is whether a collection notice that states a consumer’s “current balance,” but does not disclose that the balance may increase due to interest. and fees, complies with this provision. We hold that Section 1692e requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees. BACKGROUND Plaintiffs Annmarie Avila and Sara El-rod both received collection notices from defendant Riexinger & Associates, LLC. The notices stated that plaintiffs’ accounts had been “placed with [the firm] for collection and such action as necessary.” App’x at 59, 109. The notices stated each plaintiffs “current balance” but did not disclose that this balance was continuing to accrue interest or that, if plaintiffs failed to pay the debt within a certain amount of time, they would be charged a late fee. The bottom of the notices contained a detachable section for plaintiffs to provide their credit card information to pay the debt. On Avila’s notice, this section again.stated her “current balance.” Plaintiffs filed this lawsuit, alleging that the collection notices violated the FDGPA. They claimed, among other things, that the collection notices were misleading because they stated the “current balance,” but did not disclose that the balance might- increase due to interest and , fees. They alleged that they believed from reading the notice that the “current balance” was “static” and that their “payment of that amount would satisfy [the debt] irrespective of when [the] payment was remitted.” App’x at 31, 100. Avila alleges that in fact interest was accruing daily at a rate equivalent to 500% per year and that defendants have .tried to collect this interest from her. Defendants moved to dismiss the complaint, and the district court granted the motion. The court recognized that district courts are divided on the question whether a debt collector must disclose that the amount of the" }, { "docid": "21387228", "title": "", "text": "EVANS, Circuit Judge. Advanced Call Center Technologies, LLC (ACCT) is a debt collection agency. Hired by MBNA America Bank to collect past-due credit card payments, it sent standard form dunning letters to Plaintiffs, each of whom were delinquent in making required minimum monthly payments against their respective account balances. The letters explained that the named credit account had been listed with the agency for collection, listed the past-due amount as the “Current Amount Due,” and promised that “[i]f paid in full to MBNA America, all collection activity will be stopped.” Plaintiffs filed suit, alleging that the letters violated certain provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1601 et seq., enacted by Congress in 1996 to curb abusive practices on the part of debt collectors. ACCT’s motion for summary judgment was granted by Magistrate Judge Aaron E. Goodstein, who heard the case with the consent of the parties. The Plaintiffs have appealed and, for the reasons that follow, we affirm. Grants of summary judgment are reviewed de novo. Gillespie v. Equifax Information Svcs., L.L.C., 484 F.3d 938, 940 (7th Cir.2007). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We review the record in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Plaintiffs first allege violations of FDCPA § 809. Under the relevant language of that provision: (a) ... Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt[.] 15 U.S.C. § 1692g. Plaintiffs argue that ACCT’s letters fail to state “the amount of the debt” and" }, { "docid": "6611168", "title": "", "text": "debt will increase over time due to interest of fees. Compare, e.g., Jones v. Midland Funding, LLC, 755 F.Supp.2d 393, 397-98 (D.Conn.2010) (requiring debt collectors to disclose the fact that interest is accruing and inform consumers of the applicable interest rate),. adhered to on reconsideration, No. 3:08-CV-802 RNC, 2012 WL 1204716 (D.Conn. Apr. 11, 2012), and Dragon v. I.C. Sys., Inc., 483 F.Supp.2d 198, 203 (D.Conn.2007) (holding that collection notice was potentially misleading because least sophisticated consumer could conclude that total amount stated as due was due at any time, when in fact it was increasing), with Pifko v. CCB Credit Servs., Inc., No. 09-CV-3057 (JS), 2010 WL 2771832, at *4 (E.D.N.Y. July 7, 2010) (holding that debt collectors have no obligation to warn a consumer that her debt may increase over time), and Adlam v. FMS, Inc., No. 09 CIV. 9129(SAS), 2010 WL 1328958, at *3-4 (S.D.N.Y. Apr. 5, 2010) (same); see also Marucci v. Cawley & Bergmann, LLP, 66 F.Supp.3d 559, 565-66 (D.N.J.2014) (collecting cases). The district court sided with those courts that have held that no disclosures about interest or fees are required. Plaintiffs now appeal from the district- court’s judgment granting the motion to dismiss. DISCUSSION As noted, Section 1692e of the FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The sixteen subsections of Section 1692e set forth a non-exhaustive list of practices that fall' within this ban, including “the false representation of the character, amount, or legal status of any debt,” id. -§ 1692e(2)(A). “Because the list in the sixteen subsections is non-exhaustive, a debt collection practice can be a ‘false, deceptive, or misleading practice in violation of § 1692e even-if it- does not fall within any of the subsections of § 1692e.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993). The question presented is whether the sending of a collection notice that states a consumer’s “current balance,”- but does not disclose that the balance may increase due to interest and fees, is" }, { "docid": "6611171", "title": "", "text": "is that, in considering whether' á collection' notice violates' Section 1692e, we apply the “least sophisticated consumer” standard. Clomon, 988 F.2d at 1318. In other words, we ask how the least sophisticated consumer — “one not having the astuteness of a ‘Philadelphia lawyer’ or even the sophistication of the average, everyday, common consumer” — would understand the .collection notice. Russell, 74 F.3d at 34. Under this standard, a collection notice can be misleading if it is “open to more than one reasonable interpretation, at least one of which is inaccurate.” Clomon, 988 F.2d at 1319. Applying these principles, we hold that plaintiffs have stated a claim that the collection notices at issue here are misleading within the meaning of Section 1692e. A reasonable consumer could read the notice and be misled into believing that she could pay her debt in full by paying the amount listed on the notice. In fact, however, if interest is accruing daily, or if there are undisclosed late fees, a consumer who pays the “current balance” stated on the notice will not know whether the debt has been paid in full. The debt collector could still seek the interest and fees that accumulated after the notice was sent but before the balance was paid, or sell the consumer’s debt to a third party, which itself could seek the interest and fees from the consumer. Because the statement of an amount due, without notice that the amount is already increasing due to accruing interest or other charges, can mislead the least sophisticated consumer into believing that payment of the amount stated will clear her account, we hold that the FDCPA requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees. We think that requiring .such disclosure best achieves the Congressional purpose of full and fair disclosure to consumers that is embodied in Section 1692e. It also protects consumers such as plaintiffs who may hold the reasonable but mistaken belief that timely payment will satisfy their debts. In reaching the contrary conclusion, the district" }, { "docid": "12111638", "title": "", "text": "Midland simply identified the total amount it sought and then explained how it arrived at that sum (listing the debt it acquired from BP and its own interest charges). The unsophisticated consumer, with a reasonable knowledge of her account’s history, would have little trouble concluding that the “principal balance” included interest charged by BP. Granted, Midland could have elected to go a step further, disclosing the components of the debt it acquired — such as what Wahl charged on the card versus the interest and late fees levied by BP — but it wasn’t a matter of compulsion. It was enough for purposes of § 1692e that Midland’s statements were not false or misleading. Finally, we agree with the district court that Wahl cannot get past Barnes. Although that case dealt with a different provision of the FDCPA, § 1692g rather than § 1692e, it involved a principle equally germane to Wahl’s suit. In Barnes, we rejected a consumer’s argument that a collector failed to state “the amount of the debt” as required by § 1692g when the collector stated the amount past due and in collection, but not the overall credit card balance. Barnes, 493 F.3d at 839. We noted that, while the amount of the debt from the perspective of the credit card company might be the running balance, the amount of the debt from the collector’s perspective was what it was seeking. Id. at 840. Like Barnes, Wahl “forget[s] who the defendant is.” See id. If BP authored a letter identifying as the “principal balance” a sum containing massive amounts of interest charged at its own hand, that would have been misleading. But the nature of the debt owed to BP “is of no consequence to this case.” See id. The defendant here is Midland — the debt collector, not the creditor — and that changes everything. Wahl’s argument rests on empty semantics and conflicts with Barnes. The judgment of the district court is Affirmed. . No pun intended. . Actually, there was an intervening letter, but that’s not relevant for our purposes. . Probably, we assume," }, { "docid": "7953523", "title": "", "text": "elaborates, “This settlement may have tax consequences. Please consult your tax advisor.” The third letter also includes a settlement offer, providing that FRS could “accept a settlement on [Taylor’s account] for $299.99.” As with the April letter, it provides: “This settlement may have tax consequences. Please consult your tax advisor.” B. Plaintiff Christipa Klein Klein obtained a credit card from Bar-clays Bank (“Barclays”), which she used to make purchases for personal or household use. Around the beginning of 2014, she defaulted on her. payments to Barclays. Klein attests that every month that she did not make a full payment, interest and late fees were added to the balance on her Barclays credit card statement. In October 2015, Barclays referred Klein’s account to FRS for collection. FRS sent Klein four letters approximately a month apart regarding her credit card debt. None of the letters refers to interest or fees. FRS’s first letter to Klein, dated October 2, 2015, states in the upper right corner, “AMOUNT DUE AS OF CHARGE OFF: $3171.12” and “BALANCE DUE: $3171.12.'” The body of the letter states that Klein’s account has “been assigned to this agency for collection. We [FRS] are a professional collection agency attempting to collect a debt.... You owe $3171.12.” The bottom of the letter consists of three payment coupons each of which says “Current Balance: $3171.12.” FRS also sent Klein letters in November 2015, December 2015 and January 2016. These subsequent letters- state in the upper right corner “BALANCE DUE: $3171.12,” and each letter contains the three payment coupons, each stating “Current Balance: $3171.12.” The January letter also states in the text, “As of the date of this notice you owe $3171.12. We are authorized to settle the above listed account(s) at a substantial reduction to you. ...” In April 2016, Klein filed a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. On Schedule A/B of the Form 106A/B, she listed “Possible FDCPA claims” in the amount of $1,000. The bankruptcy court discharged her debts in July 2016, which is one month after Plaintiffs filed the Complaint alleging" }, { "docid": "21387234", "title": "", "text": "as the “balance,” also included a confusing statement that explained to recipients how to receive their “most current balance information.” Although that language referred to the balance owed not to the debt collector but to the credit card company, which could therefore not be part of “the amount of the debt” under the circumstances, we found that the FDCPA was violated, expressing a concern that the “most current balance” language might confuse a debtor into believing that the “amount of the debt” owed to the debt collector was somehow more than the $367.42. Id. at 947. But the clarity standard, also implied in Veach and Miller, is met here. Although the letters inform Plaintiffs that “MBNA may continue to add interest and fees as provided in your agreement,” there is nothing describing these speculative amounts in terms of the “Current Amount Due” or suggesting that they are owed to ACCT. More importantly, a “tearoff’ section of the letter that Plaintiffs are directed to return with their payments lists the “Current Amount Due” and nothing more. Absent some particularly ambiguous language in the rest of the letter, we cannot see how an unsophisticated consumer would interpret the tearoff to indicate that anything other than the “Current Amount Due” was “the amount of the debt.” Plaintiffs seem to suggest that the use of the term “amount of the debt” is required in the letter. But we have never held this to be the case. Although replacing “Current Amount Due” with “Amount of the Debt” might have been the easiest way for ACCT to comply with the FDCPA, requiring that action would relieve the unsophisticated consumer from the minimal obligation to be “able to make ‘basic logical deductions and inferences’ and to not interpret collection letters ‘in a bizarre or idiosyncratic fashion....’” Olson, 366 F.3d at 513. Finally, Plaintiffs allege that the statement in the dunning letters that “[i]f paid in full to MBNA America, all collection activity will be stopped” violates FDCPA § 807, which prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with" }, { "docid": "7680072", "title": "", "text": "POSNER, Circuit Judge. The Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., requires that any dunning letter by a debt collector as defined by the Act state “the amount of the debt” that the debt collector is trying to collect. § 1692g(a)(1); Miller v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir.2000). The defendant, conceded to be a debt collector, mailed the plaintiff a letter which identifies a creditor (a credit card company) and states that the “balance” is $367.42. The letter adds that the company “has assigned your delinquent account to our agency for collection. Please' remit the balance listed above in the return envelope provided. To obtain your most current balance information, please call 1-800-916-9006. Our friendly and experienced representatives will be glad to assist you and answer any questions you may have.” The district judge granted summary judgment for the defendant, ruling that the letter stated “the amount of the debt” and therefore did not violate the statute. Both parties appeal to our decision in Miller, but it is not on point. The dunning letter in that case listed the “unpaid principal balance” of $178,844.65 but added that “this amount does not include accrued but unpaid interest, unpaid late charges, escrow advances or other charges.... The amount to reinstate or pay off your loan changes daily. You may call our office for complete reinstatement and payoff figures.” Id. at 875. An 800 number was listed. We held that the letter violated the Act because it did not state the amount of the debt owed by the plaintiff, since the debt was not limited to the unpaid principal. See also Wilkerson v. Bowman, 200 F.R.D. 605, 607-08 (N.D.Ill.2001). To determine the amount she would have had to call the defendant. Here — the defendant’s lawyer stated without contradiction at oral argument — -the entire debt that the defendant was hired to collect was the $367.42 listed as the “balance.” So if the letter had stopped after the “Please remit” sentence, the defendant would be in the clear. But the" }, { "docid": "19944330", "title": "", "text": "MANION, Circuit Judge. Stephen P. Turner sued a debt collector, J.V.D.B. & Associates, Incorporated, alleging that J.V.D.B. violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e and f, by attempting to collect a $97.80 debt that had been discharged in bankruptcy. The district court granted summary judgment to J.V.D.B. on the ground that the debt collector was unaware of Turner’s bankruptcy as a matter of law. For the reasons set forth below, we reverse and remand as to § 1692e and affirm as to § 1692f. I. Stephen P. Turner’s $97.80 debt to Prepaid Local Access Phone Service Company was discharged in bankruptcy, and Prepaid received notice of the discharge on March 22, 2000 and July 5, 2000. By July 2000, Turner’s bankruptcy was listed on his credit reports, as maintained by credit reporting agencies. At some point Prepaid turned the claim over to a debt collector, J.V.D.B. & Associates, Incorporated (J.V.D.B.), which sent a collection letter to Turner dated March 29, 2001. That letter was printed on J.V.D.B.’s letterhead, stated at the top that the account balance due to Pre-Paid was $97.80, and contained the following text: This is an attempt to collect a debt and any information used will be obtained for that purpose. The above claim has been referred to this office for collection. Pursuant to Public Law 95-109, Unless [sic] you notify us within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume that the debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. Very truly yours, J.V.D.B. & Associates, Inc. Collection Agency Turner did not respond directly to the letter. Rather, he forwarded" } ]

[ { "docid": "5583918", "title": "", "text": "(1) commits a tortious act outside of the State of New York that causes injury to person or property inside the state; and (2) either (a) the defendant regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in New York; or (b) the defendant expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. Primex contends that the defendants have tortiously misappropriated business information intended for the joint venture, have interfered with its business relations by hiring Bilhorn, and have therefore injured it in New York by causing it to lose business with New York customers. This argument fails because the evidence does not support plaintiff’s contentions. New York law is clear that where a plaintiff claims to have been injured by a tortious interference with its business, indirect financial loss resulting from the fact that the injured person resides or is domiciled in New York will not support jurisdiction under section 302(a)(3). See, e.g., Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 94 (2d Cir.1975); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326-27, 402 N.E.2d 122, 126, 425 N.Y.S.2d 783, 787 (1980). Rather plaintiff must also establish a significant economic injury in New York, such as the loss or threatened loss of important New York customers. That rule is well illustrated by Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205, 385 N.E.2d 1055, 1059, 413 N.Y.S.2d 127, 132 (1978), where there was evidence that plaintiff’s business from New York sales “could suffer significantly” and that the defendant had actively and successfully solicited one of the plaintiff’s largest New York customers. See id.; see also Cavalier Label Co. v. Polytam, Ltd., 687 F.Supp. 872 (S.D.N.Y.1988); Broadcasting Rights Int’l v. Societe du Tour de France, 675 F.Supp. 1439, 1445 (S.D.N.Y.1987). No such evidence is present here. Although plaintiff resides in New York, it has failed to prove that it has lost or is likely to lose any business" } ]

[ { "docid": "23504981", "title": "", "text": "(1978). As an initial matter, Bensusan does not allege that King derives substantial revenue from interstate or international commerce. Instead, it relies on arguments that King participates in interstate commerce by hiring and showcasing bands of national stature. Section 302(a)(3)(ii), however, explicitly states that substantial “revenue” is required from interstate commerce, not mere participation in it. King has submitted an affidavit stating that 99% of his patronage and revenue is derived from local residents of Columbia, Missouri (primarily students from the University of Missouri) and that most of the few out-of-state customers have either an existing or a prior connection to the area, such as graduates of the University of Missouri. (King Decl. ¶¶ 4, 8.) Moreover, Bensusan’s allegations of foreseeability, which are based solely on the fact that King knew that Bensusan’s club is located in New York, is insufficient to satisfy the requirement that a defendant “expects or should reasonably expect the act to have consequences in the state.” That prong of the statute requires that a defendant make “a discernable effort ... to serve, directly or indirectly, a market in the forum state.” Darienzo v. Wise Shoe Stores, Inc., 74 A.D.2d 342, 346, 427 N.Y.S.2d 831, 834 (2d Dep’t.1980). Finally, Bensusan’s conclusory allegation of a loss in New York is nothing more that an allegation of an “indirect financial loss resulting from the fact that the injured person resides or is domiciled in New York,” which is not the allegation of a “significant economic injury” required by section 302(a)(3). See ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici S.P.A., 775 F.Supp. 650, 656 (S.D.N.Y.1991); Arbitron Co. v. E.W. Scripps, Inc., 559 F.Supp. 400, 404 (S.D.N.Y.1983); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326-27, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 125 (1980); Sybron, 46 N.Y.2d at 205, 413 N.Y.S.2d at 131, 385 N.E.2d at 1058. Accordingly, C.P.L.R. § 302(a)(3) does not authorize this Court to exercise jurisdiction over King. Bensusan’s primary argument in support of both statutory bases for personal jurisdiction is that, because defendant’s Web site is accessible in New York, defendant" }, { "docid": "23504979", "title": "", "text": "930 F.Supp. at 930. Then, if the user wished to attend a show in defendant’s club, he or she would have to telephone the box office in Missouri and reserve tickets. Finally, that user would need to pick up the tickets in Missouri because King does not mail or otherwise transmit tickets to the user. Even assuming that the user was confused about the relationship of the Missouri club to the one in New York, such an act of infringement would have occurred in Missouri, not New York. The mere fact that a person can gain information on the allegedly infiinging product is not the equivalent of a person advertising, promoting, selling or otherwise making an effort to target its product in New York. See Hertz, 549 F.Supp. at 797. Here, there is simply no allegation or proof that any infringing goods were shipped into New York or that any other infringing activity was directed at New York or caused by King to occur here. Cf. People v. Concert Connection, Ltd., 211 A.D.2d 310, 314, 629 N.Y.S.2d 254, 257 (2d Dep’t.1995), appeal dismissed, 86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223 (1995) (Table). Accordingly, C.P.L.R. § 302(a)(2) does not authorize this Court to exercise jurisdiction over King. B.C.P.L.R. § 302(a)(3)(H) Bensusan also contends that personal jurisdiction is established pursuant to C.P.L.R. § 302(a)(3)(h), which permits a court to exercise personal jurisdiction over any non-domiciliary for tortious acts committed outside the state that cause injury in the state if the non-domiciliary “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” See American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 432-35 (2d Cir.1971); In re Houbigant Inc., 914 F.Supp. 964, 979 (S.D.N.Y.1995); Time Prods., Plc. v. J. Tiras Classic Handbags, Inc., No. 93 Civ. 7856, 1994 WL 363930, at *7 (S.D.N.Y. July 13, 1994); Car-Freshner Corp. v. Broadway Mfg. Co., 337 F.Supp. 618, 619 (S.D.N.Y.1971); see also Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 204-05, 413 N.Y.S.2d 127, 130-31, 385 N.E.2d 1055, 1057-59" }, { "docid": "10539844", "title": "", "text": "because plaintiff is domiciled here. Dogan v. Harbert Constr. Corp., 507 F.Supp. 254, 262 (S.D.N.Y.1980); McGowan v. Smith, 52 N.Y.2d 268, 274-75, 437 N.Y.S.2d 643, 646, 419 N.E.2d 321, 324 (1981) (injury not deemed to occur in New York merely because plaintiff resides here and some suffering occurred here); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 126 (1980). Rather, the place of injury is where \"the critical events associated with the dispute took place.” Chemical Bank v. World Hockey Ass’n, 403 F.Supp. 1374, 1380 (S.D.N.Y.1975). This usually means that the acts causing the injury must have occurred in New York, Chemical Bank, supra at 1380 (conversion), or that there was a significant loss of New York business, see American Eutectic Welding Alloys Sales Co., Inc. v. Dytron Alloys Corp., 439 F.2d 428, 432-35 (2d Cir.1971); Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205, 413 N.Y.S.2d 127, 131, 385 N.E.2d 1055, 1058 (1978). Whether the \"critical events\" in this case occurred in England or in New York is a question that has been wholly unaddressed. Accordingly, jurisdiction in this case could not be bottomed on § 302(a)(3). . The second clause of § 302(a)(1), regarding nondomiciliaries who contract to ship goods into New York, is inapplicable here. The cameos at issue in this case were shipped to New Jersey, according to the companies’ standard practice. . See Louis Marx & Co. v. Fuji Seiko Co., Ltd., 453 F.Supp. 385, 390 (S.D.N.Y.1978); Merkel Assocs., Inc. v. Bellofram Corp., 437 F.Supp. 612, 617 n. 2 (W.D.N.Y.1977). . JWS Inc.’s role as a “relay station” for JWS Ltd. calls to mind Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970). There the New York Court of Appeals held that a person in New York who informed a person in California by telephone of the progress of an auction in New York and relayed his bids to the auctioneer was the Californian's agent for purposes of § 302. Similarly, here JWS Ltd. wished to avail itself of a" }, { "docid": "16359205", "title": "", "text": "tortious act outside New York from which plaintiffs claims arise, that plaintiff suffered injury in New York, that defendant should reasonably have foreseen New York consequences from its act, and that defendant derives substantial revenue from international commerce. See Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 325, 425 N.Y.S.2d 783, 786, 402 N.E.2d 122, 124-25 (1980). Defendant does not dispute that it derives substantial revenue from interstate commerce, that it committed an allegedly tortious act—putting the mark “America.Net” on the pages published at the Web site maintained on its Georgia server—outside New York, or that plaintiffs alleged injury arose from defendant’s tortious acts. Defendant argues only that (1) plaintiff did not suffer an injury in New York, and (2) it was not reasonably foreseeable that defendant’s acts in Georgia would have New York consequences. 1. Injury in New York Defendant correctly observes that it is not sufficient to satisfy section 302(a)(3) that a plaintiff is located in New York and lost profits there. See Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 425 N.Y.S.2d 783, 402 N.E.2d 122 (N.Y.1980). However, plaintiff claims to have lost more than profits. It claims that it has been, and will continue to be, harmed in the New York market because New York computer users, who are among plaintiffs potential customers, have viewed the mark “America.Net” on their computer screens in New York when visiting defendant’s site and have been confused and deceived by that mark. Those claims of harm in the New York market are sufficient to satisfy the statute’s requirement of injury “within the state.” N.Y. CPLR § 302(a)(3)(ii). The New York Court of Appeals has interpreted injury “within the state” to include harm to a business in the New York market through lost sales or lost customers. Contrast Fantis, 49 N.Y.2d at 325-27 & n. 3, 425 N.Y.S.2d at 786-87 & n. 3, 402 N.E.2d at 124-25 & n. 3 (New York importer did not suffer injury “within the state” when a nondomiciliary seized a cheese shipment bound for Chicago, because there was no allegation that the" }, { "docid": "10461976", "title": "", "text": "fraud claim. See Hargrave v. Oki Nursery, Inc., supra, 636 F.2d at 899. The Court must then determine whether the conditions of section 302(a)(3)(ii) have been met. For personal jurisdiction to attach pursuant to section 302(a)(3)(h), it must be established that: (1) the defendant committed a tort outside the state; (2) the act caused an injury within the state; (3) the defendant expected or should reasonably have expected the act to have consequences within the state; and (4) the defendant derives substantial revenue from interstate or international commerce. Each element is essential. E.g., Trafalgar Capital Corp. v. Oil Producers Equip. Corp., 555 F.Supp. 305, 310 (S.D.N.Y.1983) (Weinfeld, J.). The tort of fraud is considered to be committed where the misrepresentation is uttered. Where a defendant knowingly sends a false statement into a state intending that it be relied upon, he has, for jurisdictional purposes, acted outside the state. Marine Midland Bank v. Keplinger & Assocs., Inc., 488 F.Supp. 699, 703 (S.D.N.Y.1980) (citing Kramer v. Vogl, 17 N.Y.2d 27, 215 N.E.2d 159, 267 N.Y.S.2d 900 (1966)). In the instant case, defendant’s principals allegedly made the representations when they were in Israel, and during a meeting of the parties in Italy. Plaintiff has adequately alleged injury within the state by asserting the loss of New York customers. “[T]he situs of the injury is in the state in which the customers were lost.” Granada Television Int’l, Ltd. v. Lorindy Pictures Int’l, Inc., 606 F.Supp. 68, 72 (S.D.N.Y.1984). Accord Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205-06, 385 N.E.2d 1055, 1058-59, 413 N.Y.S.2d 127, 131-32 (1978). This is not a case where a plaintiff has alleged only remote consequential injuries that occurred in New York solely because the plaintiff is domiciled, incorporated or doing business in the state. See Friedr. Zoellner (New York) Corp. v. Tex Metals Co., 396 F.2d 300, 303 (2d Cir.1968); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 402 N.E.2d 122, 126, 425 N.Y.S.2d 783, 787 (1980) (collecting cases). The alleged misrepresentations constitute acts that defendant should reasonably have expected to have consequences within New York state." }, { "docid": "810521", "title": "", "text": "New York under the nearly identical New York statute, N.Y.C.P.L.R. § 302(a)(3), upon which § 52-59b(a)(3) is based. Bross, 489 F.Supp. at 1374-75, and cases cited therein. In evaluating the “critical events” for the purposes of jurisdiction, it has been held that the plaintiff’s residence or domi cile within a state, in and of itself, is not a sufficient predicate for the exercise of jurisdiction in that state. The determinative factor for jurisdiction is evidence of direct economic injury to the plaintiff within the state. See, e.g., Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87, 94 (2 Cir. 1975) (jurisdictional requirements “not satisfied by remote or consequential injuries such as lost commercial profits which occur in New York only because the plaintiff is domiciled or doing business here”); Arbitron Co. v. E.W. Scripps, Inc., 559 F.Supp. 400, 404 (S.D.N.Y.1983) (loss of business within state a prerequisite to jurisdiction); Data Communication, Inc. v. Dirmeyer, 514 F.Supp. 26, 31 (E.D.N.Y.1981) (plaintiffs alleged loss of federal government as a customer insufficient for jurisdiction absent a showing that plaintiff will or has lost business with a federal agency in state); Stark Carpet Corporation v. MGeough Robinson, Inc., 481 F.Supp. 499, 509 (S.D.N.Y.1980) (burden on plaintiff to demonstrate direct injury in New York to establish threshold jurisdiction). The case of Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (1978), upon which the plaintiff heavily relies, is not to the contrary. In Sybron, jurisdiction was sustained because the defendant who allegedly appropriated the plaintiffs trade secrets had actively solicited and obtained orders in New York which resulted in a loss of plaintiffs business. See American White Cross Labs., Inc. v. H.M. Cote, Inc., 556 F.Supp. 753, 759 (S.D.N.Y.1983); Fantis Foods, Inc. v. Standard Importing Co., Inc., 49 N.Y.2d 317, 325 n. 3, 425 N.Y.S.2d 783, 786 n. 3, 402 N.E.2d 122, 125 n. 3 (1980). Here, however, the defendants have not sold their products in Connecticut and have not acquired any of the customers of Lotus Health Care. The probability of economic injury in Connecticut is at best remote and" }, { "docid": "23142790", "title": "", "text": "EAF exists as a discrete corporate entity and performs a business function wholly unrelated to the operation of FBOs. In light of the tenuous connection between EAF and its corporate siblings, it stretches the imagination to argue that EAF acts as an agent or department of JAA or JTEB. See Delagi v. Volkswagenwerk AG, 29 N.Y.2d 426, 432, 278 N.E.2d 895, 897, 328 N.Y.S.2d 653, 657 (1972); Frummer, 19 N.Y.2d at 537, 227 N.E.2d at 853-54, 281 N.Y.S.2d at 44. Accordingly, there is no basis to attribute EAF’s New York contacts to its corporate siblings. Mareno further contends that the court may exercise jurisdiction over the corporate defendant under section 302(a)(3) of New York’s long arm statute. Again, we disagree. Section 302(a)(3) requires that a plaintiff demonstrate, inter alia, that the defendant “committ[ed] a tortious act without the state causing injury to person or property within the state.” To satisfy this requirement Mareno argues that he was injured within the state by virtue of the fact that he has suffered financial loss in New York. An injury, however, does not occur within the state simply because the plaintiff is a resident. “[T]he situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff.” Carte v. Parkoff 152 A.D.2d 615, 616, 543 N.Y.S.2d 718, 719 (2d Dep’t 1989) (quoting Hermann v. Sharon Hosp., Inc., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581, 583 (2d Dep’t 1987)). Thus, despite the fact that Mareno may suffer the economic consequences of his firing in New York, the location of the original event which caused the injury is New Jersey. Undoubtedly, the exercise of personal jurisdiction must be based on a more direct injury within the state and a closer expectation of consequences within the state than the type of indirect financial loss alleged by Mareno. See Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326-27, 402 N.E.2d 122, 126, 425 N.Y.S.2d 783, 787 (1980); see also American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp.," }, { "docid": "10461977", "title": "", "text": "In the instant case, defendant’s principals allegedly made the representations when they were in Israel, and during a meeting of the parties in Italy. Plaintiff has adequately alleged injury within the state by asserting the loss of New York customers. “[T]he situs of the injury is in the state in which the customers were lost.” Granada Television Int’l, Ltd. v. Lorindy Pictures Int’l, Inc., 606 F.Supp. 68, 72 (S.D.N.Y.1984). Accord Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205-06, 385 N.E.2d 1055, 1058-59, 413 N.Y.S.2d 127, 131-32 (1978). This is not a case where a plaintiff has alleged only remote consequential injuries that occurred in New York solely because the plaintiff is domiciled, incorporated or doing business in the state. See Friedr. Zoellner (New York) Corp. v. Tex Metals Co., 396 F.2d 300, 303 (2d Cir.1968); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 402 N.E.2d 122, 126, 425 N.Y.S.2d 783, 787 (1980) (collecting cases). The alleged misrepresentations constitute acts that defendant should reasonably have expected to have consequences within New York state. They were directed to a New York merchant who had commitments to New York customers, and they induced Cavalier to enter into its contract with Polytam. Absent the alleged misrepresentations, it is reasonable to expect that Cavalier would have insisted on additional safeguards to ensure timely performance by Polytam, or indeed might have decided not to deal with Polytam at all. The alleged misrepresentations, then, had the foreseeable effect of causing Cavalier to miss its delivery dates with its New York customers, causing consequences in New York within the meaning of section 302(a)(3)(ii). Finally, defendant Polytam derives substantial revenues from international commerce. New York courts have applied both a relative scale and an absolute scale in assessing whether revenue is “substantial” for purposes of section 302(a)(3)(ii). A defendant’s revenues from interstate and international commerce may be analyzed as a percentage of total revenues, or as an absolute number. Ronar, Inc. v. Wallace, 649 F.Supp. 310, 316 (S.D.N.Y.1986) (collecting cases). Since each case must be decided on its own facts, neither approach is binding on the" }, { "docid": "2797187", "title": "", "text": "of the “issuance of warrants, execution of warrants, extradition, appearances in court and the purchase of goods and services from New York manufacturers.” (Pis.’ Mem. 15.) Plaintiffs further argue that jurisdiction is proper under subsection (ii) because Seaford PD should have expected the issuance of the Delaware warrant to have consequences in New York, as it was allegedly entered into national computer databases. Seaford PD also allegedly “derive[s] substantial income from interstate commerce in the form of traffic tickets, • fines, bail, licenses, donations and permits.” (Id.). a. C.P.L.R. § 802(a)(8): “[IJnjury ... within the state” The first difficulty Plaintiffs encounter is, that § 302(a)(3) requires the alleged tortious act to have caused “injury to person or property within the state.” It is well established that this requirement is not satisfied simply because the injured plaintiff is a New York resident or domiciliary. See, e.g., Foot Locker Retail, Inc. v. SBH, Inc., No. 03-CV-5050, 2005 WL 91306, at *4 (S.D.N.Y. Jan. 18, 2005); Fantis Foods, Inc. v. Std. Importing Co., 49 N.Y.2d 317, 425 N.Y.S.2d 783, 402 N.E.2d 122, 126 (1980). Rather, jurisdiction “must be based upon a more direct injury within the State ... than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there.” Fantis Foods, 425 N.Y.S.2d 783, 402 N.E.2d at 126. The Second Circuit has interpreted the injury requirement in § 302(a)(3) to mean that the “original event which caused the injury” must have taken place in New York. Am. Buddha, 609 F.3d at 39 (quoting DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir.2001) (per curiam)); see also Magwitch, 923 N.Y.S.2d at 458 (“The determination of whether a tortious act committed outside New York causes injury inside the state is governed by the ‘situsof-injury’ test, requiring determination of the location of the original event that caused the injury.”) “This original event is ... generally distinguished not only from the initial tort but from the final economic injury and the felt conseqiiences of the tort.” Id. at 39-40 (internal quotation marks omitted). “The original event occurs" }, { "docid": "23142791", "title": "", "text": "An injury, however, does not occur within the state simply because the plaintiff is a resident. “[T]he situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff.” Carte v. Parkoff 152 A.D.2d 615, 616, 543 N.Y.S.2d 718, 719 (2d Dep’t 1989) (quoting Hermann v. Sharon Hosp., Inc., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581, 583 (2d Dep’t 1987)). Thus, despite the fact that Mareno may suffer the economic consequences of his firing in New York, the location of the original event which caused the injury is New Jersey. Undoubtedly, the exercise of personal jurisdiction must be based on a more direct injury within the state and a closer expectation of consequences within the state than the type of indirect financial loss alleged by Mareno. See Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326-27, 402 N.E.2d 122, 126, 425 N.Y.S.2d 783, 787 (1980); see also American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 433 (2d Cir.1971). Similarly, defendant Rowe, a New Jersey resident, who conducts no business in New York, is amenable to suit only if his activities fall within New York’s long arm statute. Once again, Mareno invokes sec tion 302(a)(3) but fails to establish that Rowe’s activities as a supervisor of JTEB in New Jersey resulted in a direct injury to Mareno in New York. See Fantis Food, 49 N.Y.2d at 326-27, 402 N.E.2d at 126, 425 N.Y.S.2d at 787. Thus, as with the corporate defendant, the district court properly granted the motion to dismiss for lack of personal jurisdiction. Finally, Mareno challenges the district court’s imposition of sanctions under Federal Rule of Civil Procedure 11. Until today, we reviewed whether a party’s legal argumentation is “frivolous” within the meaning of Rule 11 under a de novo standard. See, e.g., Securities Indus. Ass’n v. Clarke, 898 F.2d 318, 321 (2d Cir.1990); McMahon v. Shearson/American Express, Inc., 896 F.2d 17, 21-22 (2d Cir.1990) (discussing three-tiered standard of Rule 11 review). However, the Supreme Court" }, { "docid": "16359207", "title": "", "text": "importer lost cheese sales in New York) with Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205-06, 413 N.Y.S.2d 127, 131-32, 385 N.E.2d 1055, 1058-60 (1978) (in a suit by a New York corporation for theft of trade secrets against a nonresident former employee and his new nonresident employer, the threatened loss of plaintiffs customers and sales in New York constituted injury “within the state”). Under those cases, the requirement of injury “within the state” is met by plaintiffs claims of harm and threatened harm in the New York market resulting from the confusion and deception of New York computer users. 2. Reasonable expectation of New York consequences Defendant argues that plaintiff has not alleged facts showing that defendant expected or should reasonably have expected its act to have consequences in New York. See N.Y. CPLR § 302(a)(3)(ii). That “foreseeability” requirement “‘relates to forum consequences generally and not to the specific event which produced injury within the state.’ ” Fantis, 49 N.Y.2d at 326 n. 4, 425 N.Y.S.2d at 787 n. 4, 402 N.E.2d at 126 n. 4 (quoting Twelfth Ann. Report of N.Y. Judicial Conference 344 (1967)). In interpreting that requirement, the New York courts have focused on whether there were concrete facts known to the nondomiciliary that should have alerted it that its product would enter the New York market. Contrast Fantis, 49 N.Y.2d at 326-27 & n. 4, 425 N.Y.S.2d at 786-87 & n. 4, 402 N.E.2d at 124-25 & n. 4 (it was not reasonably foreseeable to a Greek company that there would be New York consequences when it seized a cheese shipment bound for Chicago where there was “no basis other than sheer speculation” that the cheese importer would lose any New York sales) with Darienzo v. Wise Shoe Stores, Inc., 74 A.D.2d 342, 346, 427 N.Y.S.2d 831, 833 (2d Dept.1980) (nondomiciliary shoe manufacturer should have expected New York consequences from its manufacture of shoes because it was aware that a Tennessee distributor to which its shoes were shipped would distribute them to New York retailers). It was reasonably foreseeable to defendant that publishing its home" }, { "docid": "10941732", "title": "", "text": "within New York” for purposes of § 302(a)(3). Consequently, there is no jurisdiction over defendant under that statute. Cases construing § 302(a)(3) may be divided into two categories; those involving physical injury and those concerning commercial loss. In any event, injury within the state for purposes of the statute must be “direct, and not remote or consequential.” Porcello v. Brackett, 446 N.Y. S.2d 780, 85 A.D. 917 (4th Dept.1981). For example, in Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 425 N.Y.S.2d 783, 402 N.E.2d 122 (1980), plaintiff, a New York corporation, sued another New York corporation for wrongful conversion of a shipment of cheese that had been shipped from Greece. Defendant Standard impleaded as a third-party defendant a Greek company, Synergal, that had processed the cheese and sold it to Standard. The court observed that the conversion occurred in Greece or on the high seas. Synergal’s motion to dismiss for lack of personal jurisdiction was denied by the trial court. The Court of Appeals reversed, concluding that: “[T]he only possible connection between the claimed conversion and any injury or foreseeable consequence in New York is the fact that Standard is incorporated and maintains offices there. It has, however, long been held that the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there....” 49 N.Y.2d at 326, 425 N.Y.S.2d at 787, 402 N.E.2d at 126 (citations omitted) (emphasis added). In Weiss v. Greenburg, 85 A.D. 861, 446 N.Y.S.2d 447 (3d Dept.1981), the court similarly held that pecuniary damage sustained in New York as a result of plaintiff’s domicile does not constitute the requisite injury in the state for jurisdictional purposes. In Weiss, plaintiff commenced an action for legal malpractice which was allegedly committed by defendant law firm in Florida. Plaintiff claimed that defendant failed to protect adequately his interests in foreclosure" }, { "docid": "23504980", "title": "", "text": "629 N.Y.S.2d 254, 257 (2d Dep’t.1995), appeal dismissed, 86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223 (1995) (Table). Accordingly, C.P.L.R. § 302(a)(2) does not authorize this Court to exercise jurisdiction over King. B.C.P.L.R. § 302(a)(3)(H) Bensusan also contends that personal jurisdiction is established pursuant to C.P.L.R. § 302(a)(3)(h), which permits a court to exercise personal jurisdiction over any non-domiciliary for tortious acts committed outside the state that cause injury in the state if the non-domiciliary “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” See American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 432-35 (2d Cir.1971); In re Houbigant Inc., 914 F.Supp. 964, 979 (S.D.N.Y.1995); Time Prods., Plc. v. J. Tiras Classic Handbags, Inc., No. 93 Civ. 7856, 1994 WL 363930, at *7 (S.D.N.Y. July 13, 1994); Car-Freshner Corp. v. Broadway Mfg. Co., 337 F.Supp. 618, 619 (S.D.N.Y.1971); see also Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 204-05, 413 N.Y.S.2d 127, 130-31, 385 N.E.2d 1055, 1057-59 (1978). As an initial matter, Bensusan does not allege that King derives substantial revenue from interstate or international commerce. Instead, it relies on arguments that King participates in interstate commerce by hiring and showcasing bands of national stature. Section 302(a)(3)(ii), however, explicitly states that substantial “revenue” is required from interstate commerce, not mere participation in it. King has submitted an affidavit stating that 99% of his patronage and revenue is derived from local residents of Columbia, Missouri (primarily students from the University of Missouri) and that most of the few out-of-state customers have either an existing or a prior connection to the area, such as graduates of the University of Missouri. (King Decl. ¶¶ 4, 8.) Moreover, Bensusan’s allegations of foreseeability, which are based solely on the fact that King knew that Bensusan’s club is located in New York, is insufficient to satisfy the requirement that a defendant “expects or should reasonably expect the act to have consequences in the state.” That prong of the statute requires that a defendant make “a discernable effort ..." }, { "docid": "18829747", "title": "", "text": "CPLR, 302:23 at 90 (1972) (citing Chunky Corp. v. Blumenthal Bros. Chocolate Co., 299 F.Supp. 110 (S.D.N.Y.1969); Gillmore v. J.S. Inskip, Inc., 54 Misc.2d 218, 282 N.Y.S.2d 127 (Sup.Ct.Nassau Co.1967) (discussing CPLR 302(a)(3)(i)). . Cf. Darienzo v. Wise Shoe Stores, Inc., 74 A.D.2d 342, 427 N.Y.S.2d 831 (2d Dep’t 1980) (jurisdiction not found on basis of isolated event; statute requires showing of “discernible effort ... in the forum state”). . Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205, 413 N.Y.S.2d 127, 131, 385 N.E.2d 1055 (Ct.App.1978). . American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 432 (2d Cir.1971). . See Sybron Corp. v. Wetzel, 61 A.D.2d 697, 701, 403 N.Y.S.2d 931, 933 (4th Dep’t), rev’d, 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (Ct.App.1978). . 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (Ct.App.1978). . Id. 46 N.Y.2d at 205, 413 N.Y.S.2d at 131, 385 N.E.2d 1055. . 439 F.2d 428 (2d Cir.1971). . Id. at 432-33. . Id. at 433. . American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 433 (2d Cir.1971) (quoting Zoellner (New York) Corp. v. Tex Metals Co., 396 F.2d 300, 303 (2d Cir.1968)) (citation omitted). . Id. at 434 (quoting Black v. Oberle Rentals, Inc., 55 Misc.2d 398, 285 N.Y.S.2d 226, 229 (Sup.Ct. Onondaga Co.1967). . 636 F.2d 897 (2d Cir.1980). . Id. at 900 (citations omitted). . Fantis Foods, Inc. v. Standard Importers, 49 N.Y.2d 324, 425 N.Y.S. 783, 787, 402 N.E.2d 122 (Ct.App.1978). . If Tennessee Capital had been found to be subject to New York jurisdiction, the Court would then have had to determine whether the Eastern District of Texas, where Tennessee Capital is allegedly not subject to service of process, is a district where the action “might have been brought.” See Foster-Milburn Co. v. Knight, 181 F.2d 949, 952 (2d Cir.1950); Schacht v. Javits, 53 F.R.D. 321, 323 (S.D.N.Y.1971); Jordan v. United States Lines, Inc., 291 F.Supp. 600, 601 (S.D.N.Y.1968); Twentieth Century-Fox Film Corp. v. Taylor, 239 F.Supp. 913, 923 (S.D.N.Y.1965). . Schneider v. Sears, 265 F.Supp. 257 (S.D.N.Y.1967)." }, { "docid": "16359206", "title": "", "text": "N.Y.2d 317, 425 N.Y.S.2d 783, 402 N.E.2d 122 (N.Y.1980). However, plaintiff claims to have lost more than profits. It claims that it has been, and will continue to be, harmed in the New York market because New York computer users, who are among plaintiffs potential customers, have viewed the mark “America.Net” on their computer screens in New York when visiting defendant’s site and have been confused and deceived by that mark. Those claims of harm in the New York market are sufficient to satisfy the statute’s requirement of injury “within the state.” N.Y. CPLR § 302(a)(3)(ii). The New York Court of Appeals has interpreted injury “within the state” to include harm to a business in the New York market through lost sales or lost customers. Contrast Fantis, 49 N.Y.2d at 325-27 & n. 3, 425 N.Y.S.2d at 786-87 & n. 3, 402 N.E.2d at 124-25 & n. 3 (New York importer did not suffer injury “within the state” when a nondomiciliary seized a cheese shipment bound for Chicago, because there was no allegation that the importer lost cheese sales in New York) with Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205-06, 413 N.Y.S.2d 127, 131-32, 385 N.E.2d 1055, 1058-60 (1978) (in a suit by a New York corporation for theft of trade secrets against a nonresident former employee and his new nonresident employer, the threatened loss of plaintiffs customers and sales in New York constituted injury “within the state”). Under those cases, the requirement of injury “within the state” is met by plaintiffs claims of harm and threatened harm in the New York market resulting from the confusion and deception of New York computer users. 2. Reasonable expectation of New York consequences Defendant argues that plaintiff has not alleged facts showing that defendant expected or should reasonably have expected its act to have consequences in New York. See N.Y. CPLR § 302(a)(3)(ii). That “foreseeability” requirement “‘relates to forum consequences generally and not to the specific event which produced injury within the state.’ ” Fantis, 49 N.Y.2d at 326 n. 4, 425 N.Y.S.2d at 787 n. 4, 402 N.E.2d at 126" }, { "docid": "17648938", "title": "", "text": "and had plaintiffs made payment from their domicile in New York for non-existent vines, it would have been obvious that plaintiffs had sustained injury in New York. The sitúa tion is no different because the condition of the vines rather than their existence was misrepresented. One immediate and direct “injury” Oki’s alleged tortious misrepresentations caused to plaintiffs was the loss of the money paid by them for the diseased vines. That injury was immediately felt in New York where plaintiffs were domiciled and doing business, where they were located when they received the misrepresentations, and where the vines were to be shipped. So far as the record shows, the alleged false representations injured plaintiff in no state other than New York, certainly not in California. Indeed, the only state in which plaintiffs had “property”- which could sustain “injury” was^New York. JJEhis is not a case where a defendant commits a business tort such as unfair competition or diversion of opportunities in one state and the ultimate result is a loss of profits to the plaintiff which is fortuitously domiciled in another stated See, e. g., Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87, 94-95 (2d Cir. 1975); American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 432-435 (2d Cir. 1971) and cases cited. As the New York Court of Appeals has expressed it, Section 302(a)(3) requires as a predicate for personal jurisdiction “a closer expectation of consequences within the State” than the indirect loss of profits.) Fantis Foods Inc. v. Standard Importing Co., 49 N.Y.S.2d 317, 326, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 126 (1980); see also Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (1978); Spectacular Promotions Inc. v. Radio Station WING, 272 F.Supp. 734, 737 (E.D.N.Y.1967). In this case the immediate consequence which Oki foresaw, indeed which it sought to bring about by its sales representations, was payment to it directly by a New York domiciliary. Nothing could be a “closer” or more “direct” result from Oki’s representations than the extraction of money from plaintiffs in New" }, { "docid": "23504982", "title": "", "text": "to serve, directly or indirectly, a market in the forum state.” Darienzo v. Wise Shoe Stores, Inc., 74 A.D.2d 342, 346, 427 N.Y.S.2d 831, 834 (2d Dep’t.1980). Finally, Bensusan’s conclusory allegation of a loss in New York is nothing more that an allegation of an “indirect financial loss resulting from the fact that the injured person resides or is domiciled in New York,” which is not the allegation of a “significant economic injury” required by section 302(a)(3). See ICC Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici S.P.A., 775 F.Supp. 650, 656 (S.D.N.Y.1991); Arbitron Co. v. E.W. Scripps, Inc., 559 F.Supp. 400, 404 (S.D.N.Y.1983); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326-27, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 125 (1980); Sybron, 46 N.Y.2d at 205, 413 N.Y.S.2d at 131, 385 N.E.2d at 1058. Accordingly, C.P.L.R. § 302(a)(3) does not authorize this Court to exercise jurisdiction over King. Bensusan’s primary argument in support of both statutory bases for personal jurisdiction is that, because defendant’s Web site is accessible in New York, defendant could have foreseen that the site was able to be viewed in New York and taken steps to restrict access to his site only to users in a certain geographic region, presumably Missouri. Regardless of the technical feasibility of such a procedure, see Shea, 930 F.Supp. at 929-30, 933-34, mere foreseeability of an instate consequence and a failure to avert that consequence is not sufficient to establish personal jurisdiction. See Fox v. Boucher, 794 F.2d 34, 37 (2d Cir.1986); Taurus Int’l Inc. v. Titan Wheel Int’l Inc., 892 F.Supp. 79, 82 (S.D.N.Y.1995). C. Due Process Furthermore, even if jurisdiction were proper under New York’s long arm statute, asserting personal jurisdiction over King in this forum would violate the Due Process Clause of the United States Constitution. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); see also Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in" }, { "docid": "15242607", "title": "", "text": "N.E.2d 1055, 413 N.Y.S.2d 127 (1978). In such a case, the place of injury will usually be located where the “critical events associated with the dispute took place.” Chemical Bank v. World Hockey Ass’n., 403 F.Supp. 1374, 1380 (S.D.N.Y.1975) (citation omitted) (quoting Spectacular Promotions v. Radio Station WING, 272 F.Supp. 734, 737 (E.D. N.Y.1967)). Moreover, to show an injury in New York, in commercial disputes, plaintiff traditionally must show direct interference with its New York customers or business. See Sybron, supra, 46 N.Y.2d at 205, 385 N.E.2d at 1058, 413 N.Y.S.2d at 131; American White Cross Laboratories v. H.M. Cote, Inc., 556 F.Supp. 753, 759 (S.D.N.Y.1983). Plaintiff contends that Schmitt Co. has committed tortious acts outside of New York causing plaintiff injury within New York. Plaintiff states that: [Schmitt Co.’s] tortious acts have taken place in Missouri____[Schmitt Co.’s] tor- tious acts consist of a systematic campaign of harassment and disparagement of [plaintiffs] products, officers, employees and dealers. In particular, [Schmitt Co.] has attempted to discredit the [plaintiffs] dealer in New York. [Schmitt Co.] has also misrepresented features on certain Rolls-Royce cars, which [Schmitt Co.] has advertised in New York newspapers. D. Memo, at 35 (citations omitted). In Aaacon Auto Transport v. Barnes, 603 F.Supp. 1347 (S.D.N.Y.1985), Judge Weinfeld held that he lacked jurisdiction over defendant where plaintiff merely alleged that it suffered a financial loss and was domiciled in New York. Id. at 1350. In the instant action, plaintiffs claim of New York injury is even more tenuous. Plaintiff is domiciled in New Jersey, not in New York. Moreover, plaintiff has failed to specifically allege any commercial harm or loss of profit in New York. See Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326-27, 402 N.E.2d 122, 126, 425 N.Y.S.2d 783, 787 (1980); Trafalgar Capital Corp. v. Oil Producers Equip. Corp., 555 F.Supp. 305, 312-13 (S.D.N.Y. 1983). With respect to plaintiffs claims that Schmitt Co. engaged in tortious conduct outside of New York which affected plaintiff, many of the issues discussed previously with reference to § 302(a)(2) jurisdiction are again relevant. The Court declines to review these" }, { "docid": "16359208", "title": "", "text": "n. 4 (quoting Twelfth Ann. Report of N.Y. Judicial Conference 344 (1967)). In interpreting that requirement, the New York courts have focused on whether there were concrete facts known to the nondomiciliary that should have alerted it that its product would enter the New York market. Contrast Fantis, 49 N.Y.2d at 326-27 & n. 4, 425 N.Y.S.2d at 786-87 & n. 4, 402 N.E.2d at 124-25 & n. 4 (it was not reasonably foreseeable to a Greek company that there would be New York consequences when it seized a cheese shipment bound for Chicago where there was “no basis other than sheer speculation” that the cheese importer would lose any New York sales) with Darienzo v. Wise Shoe Stores, Inc., 74 A.D.2d 342, 346, 427 N.Y.S.2d 831, 833 (2d Dept.1980) (nondomiciliary shoe manufacturer should have expected New York consequences from its manufacture of shoes because it was aware that a Tennessee distributor to which its shoes were shipped would distribute them to New York retailers). It was reasonably foreseeable to defendant that publishing its home page on its Web site, with the offending mark, would have New York consequences. In Martinez v. American Standard, 91 A.D.2d 652, 653-54, 457 N.Y.S.2d 97, 98-99 (2d Dept.1982), the Appellate Division ruled that the foreseeability requirement was not satisfied where there were no “tangible manifestations” showing that the nondomiciliary defendant, which supplied parts to another nondomicili-ary that manufactured air conditioner units, either should have known where the parts were destined or “was attempting to reach a New York market.” 91 A.D.2d at 654, 457 N.Y.S.2d at 99. Here, in contrast, there are tangible manifestations that defendant was attempting to reach a New York market. It stated twice on its home page that it could help customers “across the U.S.” It had signed up six New York subscribers. Accordingly, it was not “sheer speculation,” see Fantis, 49 N.Y.2d at 326-27 & n. 4, 425 N.Y.S.2d at 786-87 & n. 4, 402 N.E.2d at 124-25 & n. 4, but a reasonable inference that its publication of its home page might have New York consequences. Accordingly, section" }, { "docid": "10539843", "title": "", "text": "china from England, all responsibility for it is JWS Inc.’s alone. It bears all risks and burdens of inventory, credit and customer complaints. It has no power to bind JWS Ltd. to anything. Thus, the common ownership of JWS Inc. and JWS Ltd. is a mere fortuity, at least as far as § 301 is concerned. It does not, in view of the structure of the relationship between the two companies, give rise to a valid inference of agency. See Baird v. Day & Zimmerman, 390 F.Supp. 883 (S.D.N.Y.1974), aff'd mem. sub nom. Baird v. Harvey Aluminum Co., Inc., 510 F.2d 968 (2d Cir.1975). Under § 302(a)(3), a defendant is subject to jurisdiction if it has committed \"a tortious act outside the state causing injury to person or property within the state,\" and certain other conditions are met. In this case, Mayer has not shown injury in New York. Under § 302(a)(3), the claimed injury must be assigned a situs for jurisdictional purposes. The injury is not deemed to have occurred in New York merely because plaintiff is domiciled here. Dogan v. Harbert Constr. Corp., 507 F.Supp. 254, 262 (S.D.N.Y.1980); McGowan v. Smith, 52 N.Y.2d 268, 274-75, 437 N.Y.S.2d 643, 646, 419 N.E.2d 321, 324 (1981) (injury not deemed to occur in New York merely because plaintiff resides here and some suffering occurred here); Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 126 (1980). Rather, the place of injury is where \"the critical events associated with the dispute took place.” Chemical Bank v. World Hockey Ass’n, 403 F.Supp. 1374, 1380 (S.D.N.Y.1975). This usually means that the acts causing the injury must have occurred in New York, Chemical Bank, supra at 1380 (conversion), or that there was a significant loss of New York business, see American Eutectic Welding Alloys Sales Co., Inc. v. Dytron Alloys Corp., 439 F.2d 428, 432-35 (2d Cir.1971); Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 205, 413 N.Y.S.2d 127, 131, 385 N.E.2d 1055, 1058 (1978). Whether the \"critical events\" in this case occurred in England or in" } ]

[ { "docid": "22330180", "title": "", "text": "expenses of administering the Plan; “b. with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and like aims. “12. In breach of that duty: “a. CARLE owner/physicians are the officers and directors of HAMP and CHIMCO and receive a year-end distribution, based in large part upon, supplemental medical expense payments made to CARLE by HAMP and CHIMCO; “b. Both HAMP and CHIMCO are directed and controlled by CARLE owner/physicians and seek to fund their supplemental medical expense payments to CARLE: “i. by contracting with CARLE owner/physicians to provide the medical services contemplated in the Plan and then having those contracted owner/physicians: “(1) minimize the use of diagnostic tests; “(2) minimize the use of facilities not owned by CARLE; and “(3) minimize the use of emergency and non-emergency consultation and/or referrals to non-contracted physicians. “ii. by administering disputed and non-routine health insurance claims and determining: “(1) which elaims are covered under the Plan and to what extent; “(2) what the applicable standard of care is; “(3) whether a course of treatment is experimental; “(4) whether a course of treatment is reasonable and customary; and “(5) whether a medical condition is an emergency.” App. to Pet. for Cert. 85a-86a. There are, of course, contrary perspectives, and we endorse neither side of the debate today. They are certainly not capable of making that distinction on a motion to dismiss; if we accepted the Court of Appeals’s reasoning, complaints against any flavor of HMO would have to proceed at least to the summary judgment stage. In addition, fiduciaries must discharge their duties “(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; “(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the" } ]

[ { "docid": "8239681", "title": "", "text": "the Court concludes that Count X states a valid claim for fiduciary breach against State Street. E. Plaintiffs Need Not Show an Identifiable Loss Resulting Directly from State Street’s Allegedly Imprudent Actions State Street moves to dismiss Counts VI — X on the ground that Plaintiffs have failed to plead facts which, if proven, would properly support a conclusion that the Plan incurred a loss as a result of its decision to secure recoveries by participating in the Illinois and Texas Securities Settlements. See State Street’s Mot. at 3-4. As this Court has previously held, however, Plaintiffs need not plead causation. See Chao v. Trust Fund Advisors, 2004 WL 444029, at *6 (“[0]nce [Plaintiffs] ha[ve] proven a breach of fiduciary duty and a prima facie case of loss to the plan, Defendants must then prove that the loss was not caused by their breach of fiduciary duty.”) (citing Martin v. Feilen, 965 F.2d 660, 671 (8th Cir.1992), and Whitfield v. Lindemann, 853 F.2d 1298, 1304-05 (5th Cir.1988)); Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994) (same); In re Enron Corp. Sec., Derivative & ERISA Litig., 284 F.Supp.2d at 579-80 (same), and cases cited therein. Accordingly, because Plaintiffs have pled both fiduciary breach and injury, the Court will not dismiss Counts VI-X on the ground that they have failed to show an identifiable loss resulting directly from State Street’s allegedly imprudent actions. F. It Is Premature for the Court to Rule as a Matter of Law Whether Old Waste Acted in a Fiduciary Capacity in Taking the Actions at Issue in This Case Defendants argue that Plaintiffs’ First and Second Period fiduciary and co-fiduciary breach claims against Old Waste fail because Plaintiffs cannot show that Old Waste acted in a fiduciary capacity in taking the actions at issue in this case. Specifically, Defendants claim that “[t]he Plan documents [ ] demonstrate that [Old Waste] is not the Plan’s named fiduciary, nor does the Plan allocate to [Old Waste] any fiduciary duties. Rather, at all times pertinent to the allegations raised in the Complaint, the Plan [] provide[s] for" }, { "docid": "1238920", "title": "", "text": "analyze investment options. See Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917-18 (8th Cir.1994) (indicating prudent person standard not concerned with results). ERISA explicitly requires that a fiduciary act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). It also requires that “a fiduciary shall discharge his duties ... solely in the interest of the participants and beneficiaries.... ” 29 U.S.C. § 1104(a)(1). Thus, in common parlance, ERISA fiduciaries owe participants duties of prudence and loyalty. See Moench v. Robertson, 62 F.3d 553, 561 (3d Cir.1995) (stating duties arising under ERISA). To enforce these duties, “the court focuses not only on the merits of [a] transaction, but also on the thoroughness of the investigation into the merits of [that] transaction.” Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996). Thus, the Bunch plaintiffs’ contention that the market price of Grace stock sufficiently established its congruence with the duties ERISA imposes fails. In fact, when other courts faced with allegations of a breach of fiduciary duty, they have looked at the totality of the circumstances involved in the particular transaction. See, e.g., DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 418 (4th Cir. 2007); Reach v. U.S. Trust Co., 419 F.3d 626, 637 (7th Cir.2005); Rogers v. Baxter Int’l Inc., No. 04-C-6476, 2007 WL 2908829, at *2 (N.D.Ill. Oct.4, 2007). The DeFelice court stated: we examine the totality of the circumstances, including, but not limited to: the plan structure and aims, the disclosures made to participants regarding the general and specific risks associated with investment in company stock, and the nature and extent of challenges facing the company that would have an effect on stock price and viability. DiFelice, 497 F.3d at 418. The relevant query in this case is, therefore, not whether the market price was the best predictor of share value, but whether State Street took into account all relevant information" }, { "docid": "16979549", "title": "", "text": "upon fiduciaries by this subchap-ter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. Id. ERISA thus provides for both monetary and equitable relief, and does not (as the dissent claims) limit a fiduciary’s liability for breach of the duty of prudence to equitable relief. In determining whether fiduciaries have breached their duty of prudence, we ask “whether the individual trustees, at the time they engaged in the challenged transactions, employed the appropriate methods to investigate the merits of the investment and to structure the investment.” DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 420 (4th Cir.2007). Our focus is on “whether the fiduciary engaged in a reasoned deeision[-]making process, consistent with that of a ‘prudent man acting in [a] like capacity.’ ” Id. (quoting 29 U.S.C. § 1104(a)(1)(B)). When the fiduciary’s conduct fails to meet this standard, and the plaintiff has made a prima facie case of loss, we next inquire whether the fiduciary’s imprudent conduct caused the loss. For “[e]ven if a trustee failed to conduct an investigation before making a decision,” and a loss occurred, the trustee “is insulated from liability ... if a hypothetical prudent fiduciary would have made the same decision anyway.” Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.3d 210, 218 (4th Cir.2011) (quoting Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994)). ERISA’s fiduciary duties “draw much of their content from the common law of trusts, the law that governed most benefit plans before ERISA’s enactment.” DiFelice, 497 F.3d at 417 (quoting Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). Thus, in interpreting ERISA, the common law of trusts informs a court’s analysis. Id. “[TJrust law does not tell the entire story,” however," }, { "docid": "16979550", "title": "", "text": "acting in [a] like capacity.’ ” Id. (quoting 29 U.S.C. § 1104(a)(1)(B)). When the fiduciary’s conduct fails to meet this standard, and the plaintiff has made a prima facie case of loss, we next inquire whether the fiduciary’s imprudent conduct caused the loss. For “[e]ven if a trustee failed to conduct an investigation before making a decision,” and a loss occurred, the trustee “is insulated from liability ... if a hypothetical prudent fiduciary would have made the same decision anyway.” Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.3d 210, 218 (4th Cir.2011) (quoting Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994)). ERISA’s fiduciary duties “draw much of their content from the common law of trusts, the law that governed most benefit plans before ERISA’s enactment.” DiFelice, 497 F.3d at 417 (quoting Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). Thus, in interpreting ERISA, the common law of trusts informs a court’s analysis. Id. “[TJrust law does not tell the entire story,” however, because “ERISA’s standards and procedural protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection.” Varity Corp., 516 U.S. at 497, 116 S.Ct. 1065. Therefore, courts must be mindful that, in “developing] a federal common law of rights and obligations under ERISA,” Congress “ex-pedís] that” courts “will interpret th[e] prudent man rule (and the other fiduciary duties) bearing in mind the special nature and purpose of employee benefit plans.” Id. (internal citations and quotation marks omitted). On appeal, Tatum argues that, although the district court correctly determined that RJR breached its duty of procedural prudence and so bore the burden of proving that its breach did not cause the Plan’s loss, the court applied the wrong standard for determining loss causation. He contends that the court incorrectly considered whether a reasonable fiduciary, after conducting a proper investigation, could have sold the Nabisco Funds at the same time and in the same manner, as opposed to whether a reasonable fiduciary would have done so. In response, RJR contends" }, { "docid": "1911922", "title": "", "text": "Russell, 473 U.S. 134, 142, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)). Accordingly, an ERISA fiduciary is required to: discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. 29 U.S.C. § 1104(a)(l)(A)-(B). The fiduciary standard “is flexible, such that the adequacy of a fiduciary’s independent investigation and ultimate investment selection is evaluated in light of the character and aims of the particular type of plan he serves.” In re Unisys Sav. Plan Litig. (Unisys I), 74 F.3d 420, 434 (3d Cir.1996) (internal quotation omitted). And an ERISA fiduciary acts prudently when it gives “appropriate consideration to those facts and circumstances that, given the scope of such fiduciary’s investment duties, the fiduciary knows or should know are relevant to the ... investment course of action involved.... ” 29 C.F.R. § 2550.404a-l(b)(l)(i). Accordingly, in evaluating a questioned decision, we have focused on a fiduciary’s “conduct in arriving at [that] investment decision.” Unisys I, 74 F.3d at 434. But we have also approved of an approach examining whether a questioned decision led to objectively prudent investments. See In re Unisys Sav. Plan Litig. (Unisys II), 173 F.3d 145, 153-54 (3d Cir.1999) (approving of the “hypothetical prudent investor” test); see also Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994) (“Even if a trustee failed to conduct an investigation before making a decision, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyway.”); Fink v. Nat’l Sav. & Trust Co., 772 F.2d 951, 962 (D.C.Cir.1985) (Scalia, J., concurring in part and dissenting in part) (contending a fiduciary should not be liable for damages when, regardless of its failure to investigate" }, { "docid": "16979610", "title": "", "text": "must first determine that the [fiduciaries’] investments were imprudent.” Id.; see also id. at 218 (quoting Justice Scalia’s opinion in Fink). The loss, in other words, must “result[] from” the breach, 29 U.S.C. § 1109(a), which it ean-not if the investment itself was a prudent one. Our sister circuits have also generally adopted Justice Sealia’s reasoning as to loss causation in Fink. See, e.g., Renfro v. Unisys Corp., 671 F.3d 314, 322 (3d Cir.2011) (approving of the objective-prudence test for fiduciary liability under ERISA); Kuper v. Iovenko, 66 F.3d 1447, 1459-60 (6th Cir.1995), abrogated on other grounds by Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. -, -, 134 S.Ct. 2459, 2466-67, 189 L.Ed. 457 (2014); Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994) (“Even if a trustee failed to conduct an investigation before making a decision, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyway.”). To be sure, the insufficiently studious fiduciary may be (and quite possibly should be) relieved of his responsibilities. But for monetary liability to attach, it matters not whether the fiduciary spent a relatively longer or shorter time on a decision, so long as that investment decision was prudent in the end. B. The requirement of loss causation has three important corollaries. First, loss causation remains part of the plaintiffs burden in establishing monetary liability under ERISA. This is because, as I have noted above, loss causation is an element of a claim under § 1109, which requires that the losses “result[ ] from” the breach of fiduciary duty. 29 U.S.C § 1109(a); see also Plasterers’, 668 F.3d at 217 (“[W]hile certain conduct may be a breach of an ERISA fiduciary’s duties under [29 U.S.C.] § 1104, that fiduciary can only be held liable upon a finding that the breach actually caused a loss to the plan.”). Even if, as the district court found, the burden of production shifts to the defendant once the plaintiff makes a prima facie case for breach and loss, see Tatum v. R.J. Reynolds Tobacco Co., 926 F.Supp.2d 648, 683" }, { "docid": "8740118", "title": "", "text": "I, ERISA requires that a fiduciary shall discharge his duties with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise with like character and with like aims;.... Unisys I, 74 F.3d at 434 (quoting 29 U.S.C. § 1104(a)(1)(B)). We also stated that the prudence requirement focuses on “a fiduciary’s conduct in arriving at an investment decision, not on its results, and asking whether a fiduciary employed the appropriate methods to investigate and determine the merits of a particular investment.” Id. After taking evidence on the issue of Unisys’s prudence, the District Court held that the actions taken by the Fund’s trustees satisfied the prudence standard: “Based on the evidence at trial I find that the Unisys fiduciaries undertook adequate and reasonable steps before purchasing the three Executive Life contracts.” CL ¶ 3. The District Court concluded, “Measured by any standard, the Unisys fiduciaries’ actions are consistent with the prudence requirements of ERISA.” CL ¶ 13. We hold that the District Court’s findings of fact support its conclusions of law that Unisys was prudent in investing in Executive Life GICs, and thus Meinhardt failed to prove an essential element of his ERISA claim. As an alternate theory for holding that Unisys was not imprudent, the District Court considered the objective prudence of Unisys investments in Executive Life GICs by applying the “hypothetical prudent investor” test. Unisys I, 74 F.3d at 436 (citing Fink v. National Savings & Trust Co., 772 F.2d 951, 962 (D.C.Cir.1986) (Scalia, J., concurring in part and dissenting in part) and Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994)). The District Court held that a hypothetical prudent fiduciary would have invested in Executive Life GICs because (1) Executive Life was qualified under federal regu lations as an insurance company authorized to provide annuities to facilitate the termination of benefit pension plans because it was state licensed, 46 Fed.Reg. 9532, 9534 (1981); (2) other judicial decisions endorsed the purchase of Executive Life" }, { "docid": "11511383", "title": "", "text": "Under 29 C.F.R. § 2550.404(c)-1(c)(2), a plan participant also lacks independent control where he \"is subjected to improper influence by a plan fiduciary or plan sponsor with respect to the transaction or where a plan fiduciary has concealed material non-public facts regarding the investment from the participant or beneficiary .... ” Plaintiffs have alleged such concealment occurred at Enron. . Because the appellate court in In re Unisys addressed matters that transpired before these regulations were issued, it did not address them or apply them to the case before it. . To prevail on a cause of action for breach of fiduciary duty, a plaintiff is only required to \"prove a breach of fiduciary duty and a prima facie case of loss to the plan. 'Once the plaintiff has satisfied these burdens, ‘the burden of persuasion shifts to the fiduciary to prove that the loss was not caused by ... the breach of duty.’ ’ ” McDonald v. Provident Indent. Life Ins. Co., 60 F.3d 234, 237 (5th Cir.1995)(citing and quoting Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994), cert. denied, 516 U.S. 1174, 116 S.Ct. 1267, 134 L.Ed.2d 214 (1996)). . In his concurrence to Silverman, Judge Jacobs pointed out that under the common law of trusts, the defaulting fiduciary has the burden of disproving causation. 138 F.3d at 106, citing inter alia Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 278 (2d Cir.1992). Nevertheless, as discussed previously, because the common law of trusts informs but has often been modified when interpreting ERISA, the Second Circuit construed key provisions relating to co-fiduciary responsibilities to place the burden on the plaintiff, rather than on the fiduciary defendant, to prove that his losses resulted from the defendant’s inaction or fraud. Silverman, 138 F.3d at 104, addressing 29 U.S.C. § 1109(a)(\"Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this sub- chapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach" }, { "docid": "2462503", "title": "", "text": "conduct of an enterprise of a like character and with like aims.’ ” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 595 (8th Cir.2009) (alteration in original) (quoting 29 U.S.C. § 1104(a)(1)). “Section [1104]’s prudent person standard is an objective standard that focuses on the fiduciary’s conduct preceding the challenged decision” — not the results of that decision. Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917-18 (8th Cir.1994) (internal citation omitted). “Even if a trustee failed to conduct an investigation before making a decision, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyway.” Id. at 919. 1. Range of Investment Options The ABB fiduciaries contend the fact the Plan offered a wide “range of investment options from which participants could select low-priced funds bars the claim of unreasonable recordkeeping fees.” In support, the ABB fiduciaries rely on Heck-er v. Deere & Co. (Hecker I), 556 F.3d 575, 586 (7th Cir.2009), Loomis v. Exelon Corp., 658 F.3d 667 (7th Cir.2011), and Renfro v. Unisys Corp., 671 F.3d 314, 327 (3d Cir.2011), which the ABB fiduciaries propose “collectively hold that plan fiduciaries cannot be liable for excessive fees where, as here, participants in a self-directed 401(k) retirement savings plan that offers many different investment options with a broad array of fees can direct their contributions across different cost options as they see fit.” The ABB fiduciaries’ reliance on Hecker I and its progeny is misplaced. Such cases are inevitably fact intensive, and the courts in the cited eases carefully limited their decisions to the facts presented. See Hecker v. Deere & Co., 569 F.3d 708, 711 (7th Cir.2009) (explaining “the opinion was tethered closely to the facts”); Loomis, 658 F.3d at 671; Renfro, 671 F.3d at 327 (deciding “the range of investment options ... [is a] highly relevant fact[ ] ... against which the plausibility of claims ... should be measured”). The facts of this case, unlike the cited cases, involve significant allegations of wrongdoing, including allegations that ABB used revenue sharing to benefit ABB and Fidelity at the Plan’s expense. See, e.g.," }, { "docid": "2462502", "title": "", "text": "the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.’ ” Firestone, 489 U.S. at 111, 109 S.Ct. 948 (quoting Restatement (Second) of Trusts § 187 (1959) (alterations omitted)). “This deferential standard reflects our general hesitancy to interfere with the administration of a benefits plan.” Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998). Given the grant of discretion in this case, the district court should have reviewed the Plan administrator’s determinations under the Plan for abuse of discretion. With that in mind, we now turn to the ABB fiduciaries’ substantive challenges to the district court’s judgment. B. Recordkeeping “ERISA imposes upon fiduciaries twin duties of loyalty and prudence, requiring them to act ‘solely in the interest of [plan] participants and beneficiaries’ and to carry out their duties ‘with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.’ ” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 595 (8th Cir.2009) (alteration in original) (quoting 29 U.S.C. § 1104(a)(1)). “Section [1104]’s prudent person standard is an objective standard that focuses on the fiduciary’s conduct preceding the challenged decision” — not the results of that decision. Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917-18 (8th Cir.1994) (internal citation omitted). “Even if a trustee failed to conduct an investigation before making a decision, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyway.” Id. at 919. 1. Range of Investment Options The ABB fiduciaries contend the fact the Plan offered a wide “range of investment options from which participants could select low-priced funds bars the claim of unreasonable recordkeeping fees.” In support, the ABB fiduciaries rely on Heck-er v. Deere & Co. (Hecker I), 556 F.3d 575, 586 (7th Cir.2009), Loomis v. Exelon Corp., 658 F.3d 667 (7th Cir.2011), and Renfro v. Unisys Corp., 671 F.3d" }, { "docid": "14280772", "title": "", "text": "equitable claim asking for removal of the individual defendants as ESOP fiduciaries, Count III alleged that Kampmann had been unlawfully terminated for exercising rights protected under ERISA § 510 (29 U.S.C. § 1140), and Count IV alleged that the individual defendants had breached fiduciary duties under Missouri law. The district court granted defendants’ motion to dismiss the state law claim and their motion for summary judgment on the ERISA claims. Plaintiffs attack these rulings on their appeal, as well as the court’s denial of two motions related to evidence. II. A. To establish a breach of fiduciary duty claim under ERISA, a plaintiff must show a breach of a fiduciary duty and “a prima facie case of loss to the plan.” See Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994); see also Martin v. Feilen, 965 F.2d 660, 671-72 (8th Cir.1992). “Once the plaintiff has satisfied these burdens, ‘the burden of persuasion shifts to the fiduciary to prove that the loss was not caused by.. .the breach of duty.’” Roth, 16 F.3d at 917 (quoting Martin, 965 F.2d at 671). Summary judgment is warranted when there is no genuine issue of material fact, see id., and we review a grant of summary judgment de novo, see Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 891 (8th Cir.2000). Plaintiffs allege that the individual defendants breached their ERISA fiduciary duties to the ESOP by using their positions as fiduciaries to overcompensate themselves and by failing to ensure that the annual appraisals were properly conducted. In its summary judgment decision, the district court ruled that the evidence presented on both of these claims was insufficient to raise a genuine issue of material fact. Plaintiffs rely on the report of their expert, Daniel Callanan of ComStock Valuation Advisors, to establish their ERISA breach of fiduciary duty claims. In his report Callanan states that the individual defendants are overcompensated and that the annual appraisals have consistently undervalued the company. Plaintiffs contend that his opinion is enough to create a genuine issue of material fact on both claims, but summary judgment may" }, { "docid": "22051246", "title": "", "text": "requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. With these principles in mind, we turn to Braden’s complaint. Count I alleges that appellees breached the fiduciary duties of prudence and loyalty imposed upon them by 29 U.S.C. § 1104. In order to state a claim under this provision, a plaintiff must make a prima facie showing that the defendant acted as a fiduciary, breached its fiduciary duties, and thereby caused a loss to the Plan. Pegram v. Herdrich, 530 U.S. 211, 225-26, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000); Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994). Only the issue of breach is disputed here. ERISA imposes upon fiduciaries twin duties of loyalty and prudence, requiring them to act “solely in the interest of [plan] participants and beneficiaries” and to carry out their duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1). The statute’s “prudent person standard is an objective standard ... that focuses on the fiduciary’s conduct preceding the challenged decision.” Roth, 16 F.3d at 917 (citing Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir.1984)). In evaluating whether a fiduciary has acted prudently, we therefore focus on the process by which it makes its decisions rather than the results of those decisions. Id. at 917-18; Schaefer v. Ark. Med. Soc’y, 853 F.2d 1487, 1492 (8th Cir.1988) (fiduciaries must “investigate all decisions that will affect the pension plan.”). Focusing on this standard of liability, the district court found the complaint inadequate because it did not allege sufficient facts to show how appellees’ decision making process was flawed. We conclude that the district court erred in its application of Rule 8. Accepting Braden’s well pleaded factual allegations as true, he has stated a claim for breach of fiduciary duty. The district court erred in two ways. It ignored reasonable" }, { "docid": "10978521", "title": "", "text": "the trustees on the plaintiffs’ breach of fiduciary duty claim. The court found that the trustees fulfilled their fiduciary duties because the Company stock that secured the plaintiffs’ promissory notes constituted “adequate security” under federal law. The plaintiffs’ only claim on appeal is that the district court erred by granting summary judgment to the trustees on the breach of fiduciary duty claim. II. DISCUSSION Congress enacted ERISA in 1974 to provide retirement security to employees by regulating the structure and operation of retirement plans. As we explained in Martin v. Feilen, 965 F.2d 660, 664 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993), an ESOP is a type of ERISA plan that invests primarily in the stock of the employer creating the plan. Under ERISA § 404, trustees of retirement plans must fulfill their responsibilities “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B) (codifying ERISA § 404). If a trustee fails to meet § 404’s prudent person standard, he may be held personally liable for any losses to the plan that result from his breach of duty. See id. § 1109(a) (codifying ERISA § 409). The plaintiffs claim that the trustees breached their fiduciary duties under § 404 because they failed to investigate the propriety of securing the plaintiffs’ promissory notes with Company stock. A. Breach of Fiduciary Duty In Martin, 965 F.2d at 671, we held that a breach of fiduciary duty claim involves a three-step analysis. ERISA plaintiffs bear the burden of proving a breach of fiduciary duty and a prima facie case of loss to the plan. Id. Once the plaintiff has satisfied these burdens, “the burden of persuasion shifts to the fiduciary to prove that the loss was not caused by ... the breach of duty.” Id. As the party moving for summary judgment, however, the trustees can prevail only by demonstrating" }, { "docid": "16979609", "title": "", "text": "prudence and loss causation, these two elements of fiduciary liability under ERISA are distinct: “It is the imprudent investment rather than the failure to investigate and evaluate that is the basis of suit; breach of the latter duty is merely evidence bearing upon breach of the former, tending to show that the trustee should have known more than he knew.” Fink, 772 F.2d at 962 (Scalia, J., concurring in part and dissenting in part). The question posed by this case has in fact already been decided. This circuit has embraced Justice Scalia’s approach. In Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.8d 210 (4th Cir.2011), we considered a suit for breach of fiduciary duty under ERISA against former plan fiduciaries. We noted that “simply finding a failure to investigate or diversify does not automatically equate to causation of loss and therefore liability.” 663 F.3d at 217. Rather, in order to hold fiduciaries “liable for damages based on their given breach of [their] fiduciary dut[ies]” described in 29 U.S.C. § 1104, a “court must first determine that the [fiduciaries’] investments were imprudent.” Id.; see also id. at 218 (quoting Justice Scalia’s opinion in Fink). The loss, in other words, must “result[] from” the breach, 29 U.S.C. § 1109(a), which it ean-not if the investment itself was a prudent one. Our sister circuits have also generally adopted Justice Sealia’s reasoning as to loss causation in Fink. See, e.g., Renfro v. Unisys Corp., 671 F.3d 314, 322 (3d Cir.2011) (approving of the objective-prudence test for fiduciary liability under ERISA); Kuper v. Iovenko, 66 F.3d 1447, 1459-60 (6th Cir.1995), abrogated on other grounds by Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. -, -, 134 S.Ct. 2459, 2466-67, 189 L.Ed. 457 (2014); Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994) (“Even if a trustee failed to conduct an investigation before making a decision, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyway.”). To be sure, the insufficiently studious fiduciary may be (and quite possibly should be) relieved of his responsibilities. But" }, { "docid": "19419460", "title": "", "text": "meritless loyalty claims in the same way: by rigorously applying the Iqbal / Twombly plausibility standard. But a judge who is applying the Iqbal / Twombly standard to a loyalty claim must necessarily ask different questions than a judge who is applying the I qbal / Twombly standard to a prudence claim, for the simple reason that the elements of the two claims are not the same. The duty of prudence requires fiduciaries to act \"with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.\" 29 U.S.C. § 1104(a)(1)(B). This is an objective standard; the subjective intentions of the fiduciary are irrelevant. See Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 595 (8th Cir. 2009). Thus, a plaintiff who brings a prudence claim must plead and prove that a hypothetical prudent person would not have acted as the fiduciary did under the same circumstances. See Roth v. Sawyer-Cleator Lumber Co. , 16 F.3d 915, 917-918 & n.3 (8th Cir. 1994) (stating that it was \"improper[ ]\" for the district court to \"appl[y] a subjective test to the trustees' conduct\"). By contrast, the duty of loyalty requires fiduciaries to act \"for the exclusive purpose of ... providing benefits to participants and their beneficiaries.\" 29 U.S.C. § 1104(a)(1)(A)(i) (emphasis added). This is a subjective standard; what matters is why the defendant acted as he did. See A.F. v. Providence Health Plan , 173 F.Supp.3d 1061, 1073 (D. Or. 2016) (noting that the duty of loyalty \"looks to the fiduciary's subjective motivation in determining whether the fiduciary is in compliance with the rule\"). Thus, a plaintiff who brings a loyalty claim does not have to plead or prove anything about what a hypothetical prudent person would have done under the same circumstances; instead, the plaintiff must plead and prove that the defendant acted to further his own interests rather than the interests of the fund. To illustrate: Suppose that two" }, { "docid": "9300701", "title": "", "text": "is not eligible to recover damages in that situation. 29 U.S.C. § 1109(a). All of this means that a court need find causation before awarding damages. See Roth, 16 F.3d at 919 ; see also Brock v. Robbins, 830 F.2d 640, 647 (7th Cir. 1987) (rejecting the idea that, in enacting ERISA, Congress intended to deter \"imprudent but harmless conduct\"). So far, so good, in that all parties agree that causation must be found to sustain a recovery for plaintiffs. What the parties dispute is who bears the burden of proving (or disproving) causation. To answer this question, we begin with the extant precedent, followed by our own analysis. Our sister courts are split on who bears the burden of proving or disproving causation once a plaintiff has proven a loss in the wake of an imprudent investment decision. Compare Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 363 (4th Cir. 2014) (adopting in the ERISA context the \"long recognized trust law principle ... that once a fiduciary is shown to have breached his fiduciary duty and a loss is established, he bears the burden of proof on loss causation\"); McDonald v. Provident Indem. Life Ins. Co., 60 F.3d 234, 237 (5th Cir. 1995) (holding that once an ERISA plaintiff proves \"a breach of a fiduciary duty and a prima facie case of loss to the plan[,] ... the burden of persuasion shifts to the fiduciary\" to disprove causation (internal quotation marks omitted) ); Martin v. Feilen, 965 F.2d 660, 671 (8th Cir. 1992) (\"[O]nce the ERISA plaintiff has proved a breach of fiduciary duty and a prima facie case of loss to the plan or ill-gotten profit to the fiduciary, the burden of persuasion shifts to the fiduciary to prove that the loss was not caused by, or his profit was not attributable to, the breach of duty.\") with Pioneer Centres Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1337 (10th Cir. 2017), cert. dismissed per stipulation, No. 17-667, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----, 2018 WL 4496523" }, { "docid": "14280771", "title": "", "text": "Mathews appraised the value per share for the year 2000 at $109,000, but plaintiffs’ expert calculated that the actual value per share was over $200,000. In January 2000, a Melton employee named Greg Cox took some documents from Rufkahr’s briefcase. The documents revealed the compensation paid to Melton executives, and Cox copied them and shared the information with certain other employees, including plaintiff Ronald Kampmann. At the annual stockholder meeting on February 17, 2000, Cox circulated a “public notice” containing information on executive compensation and calling for president Rufkahr to resign. Kamp-mann was later interviewed about the theft of the documents, but he did not reveal to management that he knew Cox had taken them. Kampmann was terminated effective March 13, 2000, for failure to cooperate in the investigation of the missing documents and for a pattern of work conduct problems. Plaintiffs brought this action on April 25, 2000. Count I alleged that the individual defendants breached fiduciary duties under ERISA §§ 404, 405, 406 (29 U.S.C. §§ 1104, 1105, 1106), Count II alleged an equitable claim asking for removal of the individual defendants as ESOP fiduciaries, Count III alleged that Kampmann had been unlawfully terminated for exercising rights protected under ERISA § 510 (29 U.S.C. § 1140), and Count IV alleged that the individual defendants had breached fiduciary duties under Missouri law. The district court granted defendants’ motion to dismiss the state law claim and their motion for summary judgment on the ERISA claims. Plaintiffs attack these rulings on their appeal, as well as the court’s denial of two motions related to evidence. II. A. To establish a breach of fiduciary duty claim under ERISA, a plaintiff must show a breach of a fiduciary duty and “a prima facie case of loss to the plan.” See Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994); see also Martin v. Feilen, 965 F.2d 660, 671-72 (8th Cir.1992). “Once the plaintiff has satisfied these burdens, ‘the burden of persuasion shifts to the fiduciary to prove that the loss was not caused by.. .the breach of duty.’” Roth, 16 F.3d" }, { "docid": "4166022", "title": "", "text": "1001(b)). To that end, ERISA requires that a pension plan fiduciary act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent [person] acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). Under this “prudent person” standard, courts must determine “whether the individual trustees, at the time they engaged in the challenged transactions, employed the appropriate methods to investigate the merits of the investment and to structure the investment.” Donovan v. Mazzola, 716 F.2d 1226, 1232 (9th Cir. 1983). The prudence analysis “focus[es] on a fiduciary’s conduct in arriving at an investment decision, not on its results.” In re Unisys Sav. Plan Litig., 74 F.3d 420, 434 (3d Cir. 1996). “Because the content of the duty of prudence turns on ‘the circumstances ... prevailing’ at the time the fiduciary acts, the appropriate inquiry will necessarily be context specific.” Fifth Third Bancorp v. Dudenhoeffer, — U.S. -, 134 S.Ct. 2459, 2471, 189 L.Ed.2d 457 (2014) (quoting 29 U.S.C. § 1104(a)(1)(B)). This duty of prudence extends to both thé initial selection of an investment and the continuous monitoring of investments to remove imprudent ones. Tibble v. Edison Int’l, — U.S. ——, 135 S.Ct. 1823, 1828-29, 191 L.Ed.2d 795 (2015). To state a claim for breach of fiduciary duty, a complaint does not need to contain factual allegations that refer diréetly to the fiduciary’s knowledge, methods, or investigations at the relevant times. Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 718 (2d Cir. 2013). Even in the absence of such direct allegations, the court may be able to reasonably infer from the circumstantial factual allegations that the fiduciary’s decision-making process was flawed. Id. (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 596 (8th Cir. 2009)). After all, “the circumstances surrounding alleged breaches of fiduciary duty may frequently defy particularized identification at the pleading stage.” Concha v. London, 62 F.3d 1493, 1503 (9th" }, { "docid": "1238919", "title": "", "text": "fact, courts have held that “a trustee is not imprudent to assume that a major stock market provides the best estimate of the value of the stocks traded on it that is available to him.” Summers v. State St. Bank & Trust Co., 453 F.3d 404, 409 (7th Cir.2006). Accordingly, the Bunch plaintiffs argue that because Grace common stock traded in an efficient market, putting a different price into the valuation process constituted “second guessing” the market. Bunch’s Mem. Supp. Mot. Summ. J. at 12. Grace and State Street argue, however, that the current market price of Grace stock was only one of the factors they needed to consider to meet the prudent person standard of ERISA. State Street’s Opp. Summ. J. [Doc. 192] at 10-11. The problem with the Bunch plaintiffs’ argument is that the efficient market is not the standard by which State Street’s actions are to be measured. ERISA does not require that a fiduciary maximize the value of investments provided to participants or follow a detailed step by step process to analyze investment options. See Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917-18 (8th Cir.1994) (indicating prudent person standard not concerned with results). ERISA explicitly requires that a fiduciary act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). It also requires that “a fiduciary shall discharge his duties ... solely in the interest of the participants and beneficiaries.... ” 29 U.S.C. § 1104(a)(1). Thus, in common parlance, ERISA fiduciaries owe participants duties of prudence and loyalty. See Moench v. Robertson, 62 F.3d 553, 561 (3d Cir.1995) (stating duties arising under ERISA). To enforce these duties, “the court focuses not only on the merits of [a] transaction, but also on the thoroughness of the investigation into the merits of [that] transaction.” Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996). Thus, the Bunch plaintiffs’ contention that the market" }, { "docid": "22051245", "title": "", "text": "of action”; such allegations may properly be set aside. Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In addition, some factual allegations may be so indeterminate that they require “further factual enhancement” in order to state a claim. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955;) see also Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009). Finally, the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible. See Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 285 (D.C.Cir.2009) (factual allegations should be “viewed in their totality”); cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“The inquiry [under the Private Securities Litigation Reform Act] is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.”). Ultimately, evaluation of a complaint upon a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. With these principles in mind, we turn to Braden’s complaint. Count I alleges that appellees breached the fiduciary duties of prudence and loyalty imposed upon them by 29 U.S.C. § 1104. In order to state a claim under this provision, a plaintiff must make a prima facie showing that the defendant acted as a fiduciary, breached its fiduciary duties, and thereby caused a loss to the Plan. Pegram v. Herdrich, 530 U.S. 211, 225-26, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000); Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994). Only the issue of breach is disputed here. ERISA imposes upon fiduciaries twin duties of loyalty and prudence, requiring them to act “solely in the interest of [plan] participants and beneficiaries” and to carry out their duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use" } ]

[ { "docid": "12385310", "title": "", "text": "in Counts 1-8 would automatically be made to him, is a permissible reading but not one to which the Government would be confined by the indictment alone. Moreover, even if it were far ■clearer than it now is that the Government’s evidence would necessarily be limited as the judge thought, and if we should agree with his construction of the statute as permitting only one punishment in that event, dismissal of Counts 2-8 was still unwarranted. The draftsman “may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government’s case the defendant may insist that all the counts are merely variants of a single offense.” United States v. Universal C.I.T. Credit Corp., supra, 344 U.S. at 225, 73 S.Ct. at 231, 97 L.Ed. 260. See also Dealey v. United States, 152 U.S. 539, 542, 14 S.Ct. 680, 38 L.Ed. 545 (1894). The basis for requiring even an election among counts is not at all that the defendant may otherwise face multiple sentences. Decision as to the unit of punishment is not controlled by the form of the indictment; as Judge Wyzanski has said, “multiplicitousness never places a defendant in jeopardy of multiple sentences.” United States v. Mamber, 127 F.Supp. 925, 927 (D.Mass.1955). The reasons for requiring the Government to elect among counts in some cases are, rather, primarily those of promoting the order and efficiency of the trial and avoiding the risk that “the prolix pleading may have some psychological effect upon a jury by suggesting to it that defendant has committed not one but several crimes.” Ibid. Whether election among Count 1-8 should be required, either before or after the close of the evidence," } ]

[ { "docid": "15739309", "title": "", "text": "United States, 333 F.2d 323 (8th Cir. 1964). To conclude, we hold that appellant’s ongoing conduct in accepting CETA pay for hours worked at the Junior College constituted but one offense and was properly charged as a single felony. With respect to the student paychecks, however, we hold that each deposit was a separate offense and that it was improper to aggregate the offenses to reach the felony jurisdictional amount. Accordingly, the conviction on counts one through ten are affirmed, and we remand for misdemeanor sentencing on count eleven. AFFIRMED IN PART AND REMANDED IN PART. . Originally, a federal grand jury returned a one-count indictment against appellant alleging one violation of 18 U.S.C.A. § 665. When the case came on for a calendar call the government indicated that it would seek a superseding indictment. The following day the original indictment was dismissed and the grand jury retumed the eleven-count indictment under which appellant was prosecuted. We find no merit in appellant’s argument that the superseding indictment should have been dismissed because it was a product of “prosecutorial vindictiveness.” Brief for Appellant at 17. . Appellant’s net pay for each two-week period was approximately $300. Tr. at 114-15. . We note at this junction that the Supreme Court’s decision in United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952) is not controlling here. Universal involved construction of certain provisions of the Fair Labor Standards Act. The defendant was charged with 32 violations of the Act: 6 for failure to pay minimum wages, 20 for failure to pay sufficient overtime, and 6 for failure to comply with record-keeping requirements. Each of the first 26 counts charged one week’s worth of violations. The last 6 charged 2 violations each as to 2 employees. 344 U.S. at 219, 73 S.Ct. 227. The government claimed that the multi-count indictment was proper because the statute was meant to punish each breach of the employer’s statutory duty. The district court, rejecting this argument, held “that it is a course of conduct rather than the separate items in such" }, { "docid": "14854034", "title": "", "text": "an element of the offense and that counts forty-one through forty-eight were so vague as to violate the Sixth Amendment. I. Defendant alleges that the court erred in not requiring the Government to elect a single count of the indictment upon which to prosecute and dismiss the remaining counts. Defendant argues that the statute does not make a separate crime out of each payment, but rather, it is a course of conduct which is prohibited, and therefore only one offense, if any is made out by the Government’s case. Defendant relies upon, inter alia, Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) ; United States v. Universal Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); and United States v. Inciso, 7 Cir., 292 F.2d 374 (1961), cert. denied, 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135. We disagree. The Third Circuit was presented with this same issue in United States v. Alaimo, 3 Cir., 297 F.2d 604 (1961), cert. denied, 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784. We agree with and adopt its reasoning, which is set out in the margin below. Defendant’s reliance on our decision in United States v. Inciso, supra, is misplaced. There, defendant was charged in a 22-count indictment with violation of Section 186(b), each count naming a dif ferent employer as payor. Thus, the issue of the same employer making more than one payment, with defendant being indicted for each payment, was not presented and determined in Inciso. We hold that each payment by Interstate to defendant constituted a separate violation of Section 186(b). II. Defendant alleges that the court erred in instructing the jury concerning the word “willfully” in Section 186(d) and that the Government failed to prove that defendant willfully violated the Act. The court in instructing the jury with respect to willfullness charged as follows: “The payment and receipt of money here must be willfully and knowingly done. “The word ‘willfully’ means that the person knowingly and intentionally committed the acts which constitute the offenses charged. “The word ‘knowingly’ imports" }, { "docid": "12385312", "title": "", "text": "is not before us. Under no view, however, was dismissal an appropriate remedy. Reversed. . “Where a court interprets a criminal statute so as to exclude certain acts and transactions from its reach, it would of necessity also hold, expressly or impliedly, * * * that the indictment, considered merely as a pleading, was defective.” . At the cited page of the Hastings opinion, Chief Justice Hughes said that insofar as the district court had construed the indictment, “We are. not at liberty to construe the indictment otherwise,” and that claims depending on what the Government contended to be the proper construction of the indictment “must await a different and appropriate record.” Under the 1942 amendment, alleged misconstruction of an indictment is now cognizable in a court of appeals. . Appellee also claims that United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 225-226, 73 S.Ct. 227, 231-232, 97 L.Ed. 260 (1952), requires a conclusion contrary to that which we have reached. The Supreme Court there took jurisdiction of an appeal from a dismissal of various counts of an indictment as not charging separate crimes and stated, in affirming, that this would not preclude, the Government “from now amending the information either to meet the exigencies of the evidence or to charge as separate offenses separate courses of conduct as to each substantive provision.” But the Government had not argued in that case that the district judge had misread the information, as it here argues that the judge misconstrued the indictment. And the quoted language was addressed, not to the question of appellate jurisdiction, but to the excessive relief which the Supreme Court thought the. district judge had there granted, even though it agreed with him that the information was based on an improper theory. — a point also arising in this case and discussed below. . Ketchum’s motion for a bill of particulars was argued at the same time as his motion to dismiss Counts 2-8. It was granted only as to one item with respect to these counts, namely, “Specify the nature of the services allegedly rendered" }, { "docid": "10316552", "title": "", "text": "next argues that the district court erred when it denied his motion to dismiss count one of his indictment as multiplicitous. According to DeCarlo, if one crime or act has been divided into more than one count, multiplicity occurs, resulting in multiple punishments for what amounts to a single illegal act. See Ger-berding v. United States, 471 F.2d 55, 58 (8th Cir.1973). Such an indictment, he says, violates the Double Jeopardy Clause of the Fifth Amendment. See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The proper remedy, DeCarlo asserts, is an election or consolidation of the offending counts and dismissal of the surplus counts. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224, 73 S.Ct. 227, 97 L.Ed. 260 (1952). It appears that the district court agreed with this reasoning at the motion hearing but held that dismissal of one of the counts was unnecessary. Instead, the district court stated that in the event DeCarlo was found guilty on both counts, he would be punished under only one statute, thereby avoiding any violation of his Fifth Amendment rights. However, the district court imposed sentences on both counts of conviction (although the prison terms ran concurrently), including the statutory $100 special assessment on each count. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The prohibition against double jeopardy protects individuals not only from successive trials, but also prohibits multiple punishments for the same offense. See Witte v. United States, 515 U.S. 389, 391, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); Hampton v. Hobbs, 106 F.3d 1281, 1288 (6th Cir.1997). However, “a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Albernaz v. United States, 450 U.S. 333, 344 n. 3, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The first step in deciding whether one act can give rise to more than one conviction under separate statutes, or separate sections of the same" }, { "docid": "2243412", "title": "", "text": "the period of limitations began to run against that crime. But not so of the particular crime charged in this indictment. We have here a situation comparable to some conspiracies in the sense that the scheme continued over a period of time, as conspiracies often do. Of course there is no conspiracy charged; only one person is indicted. But we see no greater legal obstacle to an indictment based on the continuing scheme of one person than on the continuing conspiracy of more than one. Defendant’s conduct in lodging the designation with the Disbursing Office, thus falsifying a material fact, and in leaving it on file, thereby continuing the falsification in order repeat-' edly to partake of the fruits of the' scheme, fairly falls within the terms of' section 1001. ' Defendant urges that the Government’s theory that an offense was committed each of the seven months specified in the seven counts leads to an untenable postulate, namely, that a separate offense, was committed each moment after the. form was filed. In the end, however, this, contention does not help defendant, for the alternative to this postulate is not, as defendant would have it, that a single crime was completed when the form was filed on or about August 27, 1949, but that defendant’s course of conduct constituted a single offense which continued into December, 1950. The portion of the statute upon which the indictment rests we think does reveal a Congressional intent to reach a pattern of conduct rather than to penalize a series of acts which manifest the pattern. In construing a criminal statute doubts should be resolved in favor of a construction that avoids subjecting an offender to multiple convictions by reason of a single unified pattern of behavior even though the behavior continues over a period of time. See United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260. See, also, In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 ; United States v. Kissel, 218 U.S. 601, 607-608, 31 S.Ct. 124, 54 L.Ed. 1168;" }, { "docid": "3994459", "title": "", "text": "credit was not issued by Holley or any Peoples employee. Part or all of eleven of Holley’s responses to questions quoted in count two are underlined. The underlined deposition testimony is prefaced by the statement that Holley “knowingly did make false, material declarations under oath which are underlined below.” In the quoted testimony Holley generally states that a real estate agent for Midway requested a sample letter of credit to ensure that the form of the letter was acceptable and because Midway “had been stung before”; that Holley ordered that a sample letter be sent; and that the real estate agent or someone at the title company or at Midway signed the sample letter of credit after it was sent. The indictment in the instant case raises an issue similar to the issue of duplicity addressed by this Court in Bins v. U.S., 331 F.2d 390 (5th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 149, 13 L.Ed.2d 87 (1964). In Bins, the defendant was charged, inter alia, on two counts of making a false statement for the purpose of obtaining a loan from the Federal Housing Administration. Each count alleged the making of a false statement on two separate loan application forms. The Court stated that, for purposes of the requirement that separate offenses joined in the same indictment be stated in separate counts, Fed.R.Crim.P. 8(a), “it is well settled that the test for determining whether several offenses are involved is whether identical evidence will support each of them, and if any dissimilar facts must be proved, there is more than one offense.” Id. at 393. We held that “[t]he filing of each false document would constitute a crime, and each should be alleged in a separate and distinct count of the indictment.” Id. The Court noted that although such a duplicitous indictment can be cured by a limiting jury instruction, none was issued by the trial court and the Court therefore reversed the defendant’s convictions. As in Bins, both counts of Holley’s indictment allege multiple false statements. The government was required to prove dissimilar facts to show the" }, { "docid": "17713562", "title": "", "text": "the commission of such offense by all the means mentioned, using the conjunctive “and” wherever the statute uses the word “or,” without being duplicitous. United States v. Dembowski, D.C.Mich., 252 F. 894. His objections to the indictment must also fail if the indictment charges two offenses because “ * * * a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government’s case the defendant may insist that all the counts are merely variants of a single offense.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 231, 97 L.Ed. 260. Finally appellant complains of the court’s instructions particularly as they define membership and affiliation. The trial court instructed: “Membership in the Communist Party is the state or status of being one of those persons who belong to or compose that Party. Not every relationship between an individual and an organization constitutes membership. An individual may be sympathetic or agree with all or part of the program of an organization and still not be a member. Isolated acts of the defendant showing cooperation with the Communist Party or isolated statements of the defendant showing sympathy with Communist Party or with its aims or policies are not conclusive evidence of membership but are circumstances which you may take into consideration along with all the other evidence in the case. “The word ‘affiliated’, as used in the second and fifth counts of the indictment, means a relationship short of and less than membership in the Communist Party, but more than that of" }, { "docid": "2243413", "title": "", "text": "this, contention does not help defendant, for the alternative to this postulate is not, as defendant would have it, that a single crime was completed when the form was filed on or about August 27, 1949, but that defendant’s course of conduct constituted a single offense which continued into December, 1950. The portion of the statute upon which the indictment rests we think does reveal a Congressional intent to reach a pattern of conduct rather than to penalize a series of acts which manifest the pattern. In construing a criminal statute doubts should be resolved in favor of a construction that avoids subjecting an offender to multiple convictions by reason of a single unified pattern of behavior even though the behavior continues over a period of time. See United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260. See, also, In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 ; United States v. Kissel, 218 U.S. 601, 607-608, 31 S.Ct. 124, 54 L.Ed. 1168; State v. Licari, 132 Conn. 220, 43 A.2d 450; Kirchheimer, “The Act, the Offense and Double Jeopardy,” 58 Yale L.J. 513, 540, and cases there cited. Absolving defendant of multiple offenses, however, does not absolve him entirely. We construe the statute, as applied to the facts of this case, to support an indictment of defendant for a single offense which continued until the scheme ended in December, 1950. And the fact that the indictment instead charges seven offenses does not require reversal. The Supreme Court dealt with a similar problem in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23. There the indictment in each of several counts charged a separate crime of conspiracy on the theory that the different criminal objects of a single agreement- gave rise to separate crimes. The Court concluded that only one conspiracy existed notwithstanding its various objects and that therefore convictions on each of the several counts were erroneous. But the Court did not set aside the action of the jury or grant a new" }, { "docid": "2358039", "title": "", "text": "motion is denied. MULTIPLICITY Defendant Amidzich has filed a motion seeking an order dismissing Counts VI and VII or, alternatively, requiring the Government to elect which count it wishes to proceed on, arguing that the counts are multiplicitous. Count VI charges that on April 3, 1975, defendant Amidzich possessed 12 grams of cocaine with intent to distribute it and Count VII alleges that he possessed 2,300 tablets of d-amphetamine sulphate with intent to distribute on the same date. Defendant claims that the Government will attempt to prove that the offenses occurred at the same time and place and that Counts VI and VII are, therefore, fatally multiplicitous in that a single act of possessing controlled substances with intent to distribute them has been fractionated into two substantive offenses. He therefore invokes the rule of lenity and seeks dismissal or election. See, Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). The Government has not conceded that only a single act of possession will be shown at trial. In this situation, the Court’s statement in United States v. Universal C. 1. T. Credit Corp., supra, at 225, 73 S.Ct. at 231, is applicable: “ * * * Whether an aggregate of aets constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an [indictment] and may have to await the trial on the facts.” Defendant’s motion to dismiss or elect will, therefore, be denied with leave to defendant to renew it at the conclusion of the trial, or following a verdict of guilty, if one is rendered, at the imposition of sentence. United States v. Miller, 387 F.Supp. 1097, 1099-1100 (D. Conn.1975). MOTION TO STRIKE Defendants have also moved that the following paragraph of Count I be stricken: “4. It was further part of the conspiracy" }, { "docid": "7779610", "title": "", "text": "motion to dismiss the indictment. Copeland complains that the indictment was multiplicitous and that the government’s framing of the indictment in two counts, notwithstanding the government’s concession that there was only one conspiracy, put him twice in jeopardy for the same offense. In support of his position, Copeland cites Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). That authority, however, is fatal to his argument, for in Braverman the Supreme Court held that where an indictment sets forth the illegal objects of a single conspiracy in several counts, only one sentence for a single conspiracy may be imposed. In the district court Copeland received only one eight-year sentence, which is clearly within the statutory maximum set by 21 U.S.C. §§ 841 and 846. Furthermore, although there was only one conspiracy, charging the conspiracy in two counts is appropriate where different statutory penalties are involved, provided the defendant receives only one sentence. Prudence advises separation of counts involving different statutory penalties in order to avoid imposition of a sentence in excess of the maximum term for the statutory violation that supported the general verdict of guilty. This court has approved charging one conspiracy in two counts in a similar situation, there separating the illegal objects of the conspiracy into misdemeanors and felonies. Williams v. United States, 238 F.2d 215, 218 n.2 (5th Cir. 1956), cert. denied, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596 (1957). Finally, even if the indictment were multiplicitous, this is not a ground for reversal of a conviction when a defendant receives only one sentence “since an indictment may charge a single crime in a variety of forms to avoid a fatal variance of the evidence.” United States v. Lentz, 624 F.2d 1280, 1289 (5th Cir. 1980), cert. denied, 450 U.S. 995, 101 S.Ct. 1696, 68 L.Ed.2d 194 (1981), United States v. Dudley, 581 F.2d 1193, 1199 (5th Cir. 1978) (citing United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 231, (1952)). Finally Copeland claims reversible error in the trial judge’s refusal to admit the" }, { "docid": "11198443", "title": "", "text": "only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (citation omitted); see also United States v. Ogba, 526 F.3d 214, 233 (5th Cir.2008); United States v. Buchanan, 485 F.3d 274, 278 (5th Cir.2007). In applying this test, a court must not examine the particular facts of the case or the circumstances involved, but rather must compare the statutory elements of each offense argued to be multiplicitous. See Lankford, 196 F.3d at 577-78 (citing United States v. Soape, 169 F.3d 257, 266 (5th Cir.1999); United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir.1994)). The appropriate remedy for allowing a jury to return convictions on multi-plicitous counts is to order the government to “dismiss[] the counts that create the multiplicity.” United States v. Saks, 964 F.2d 1514, 1526 (5th Cir.1992) (quoting United States v. Moody, 923 F.2d 341, 347-48 (5th Cir.1991)). However, “[w]hile the Double Jeopardy Clause may protect a single defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution.” Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (emphasis added). Indeed, “a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts where the body of facts upon which the indictment gives rise to only one criminal offense or to more than one.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 97 L.Ed. 260 (1952). The Supreme Court “has long acknowledged the Government’s broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case.” Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Accordingly, the Government may prosecute a defendant under separate statutes even when conviction and punishment under multiple statutes may not be appropriate. Id.; see also United States v. Thomas," }, { "docid": "17061699", "title": "", "text": "3 of the act a misdemeanor and provides a criminal penalty therefor. These counts of the indictment, therefore, on their face, charge a criminal offense. The defendants urge, however, that these counts are duplicitous within the meaning of the decisions in United States v. Universal C. I. T. Credit Corp., 1952, 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260, and United States v. Personal Finance Co., D.C.S.D.N.Y.1959, 174 F. Supp. 871, and have moved for an order dismissing them on that ground. The offense charged in count 1 is merely repeated in counts 2 through 8, with differences in the dates, consignees and composition of the products. Duplicitous informations and indictments were considered by the Supreme Court in United States v. Universal C. I. T. Credit Corp., supra, affirming D.C. W.D.Mo.1952, 102 F.Supp. 179. That case involved violations of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., minimum wage, overtime and record keeping provisions. Of the thirty-two counts in the information, all but three, one for violation of each section considered, were dismissed. The Supreme Court affirmed the lower court’s finding that a course of conduct, rather than separate items making up that course, constituted the punishable offense. The Court said: “* * * the statute * * * treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single ‘impulse,’ a conception recognized by this Court in the Blockburger ease [Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306] * * *. Merely to illustrate, without attempting to rule on specific situations: A wholly unjustifiable managerial decision that a certain activity was not work and therefore did not require compensation under F.L.S.A. standards cannot be turned into a multiplicity of offenses by considering each underpayment in a single week or to a single employee as a separate offense.” 344 U.S. at page 224, 73 S.Ct. at page 231. Thus a course of conduct was found to be the punishable offense, despite the fact that the Fair Labor Standards Act was" }, { "docid": "22319424", "title": "", "text": "single offense with unrelated underpayments which resulted from the decision that a certain activity was not work, merely because the two kinds of underpayments occurred in the same workweek or involved the same employee. Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts. This information is based on what we find to be an improper theory. But a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government’s case the defendant may insist that all the counts are merely variants of a single offense. By affirming this order without prejudice to amendment of the information, we do not mean to suggest that amendment to increase the number of offenses may be made after trial has begun. But the Government is not precluded from now amending the information either to meet the exigencies of the evidence or to charge as sep arate offenses separate courses of conduct as to each substantive provision. All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act. Without prejudice to amendment of the information before trial if the evidence to be offered warrants it, the order below is Affirmed. The criminal enforcement provisions of the Fair Labor Standards Act are §§ 15" }, { "docid": "4156754", "title": "", "text": "additional charges and thus create a more attractive case from the prosecution’s point of view. Apparently failing in this endeavor, the government on July 29, 1977 filed the instant indictment based — as we have observed — on evidence which had at all times been readily available to it. (b) Claimed violation of the constitutional prohibition against double jeopardy The Supreme Court has recently reminded us that the “Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the single expedient of dividing a single crime into a series of temporal . . . units.” Brown v. Ohio (1977) 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. The question before us is whether the government has done just that, i. e. whether this defendant, whose first indictment for failure to keep records until July 31,1972 was dismissed, is now being prosecuted again for the same crime in this indictment, which charges a failure to keep records from August 1 through December 31, 1972 (Count 1) and from January 7 until August 31, 1973 (Count 2). The proper approach to this problem is found in United States v. Universal Corp. (1952) 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260. In that case the Court had before it the question whether the Fair Labor Standards Act, which among other things prohibited the payment of substandard wages, penalized a course of conduct or enabled a prosecutor to treat as a separate offense each breach of the statutory duty owed to a single employee during any work week. In rejecting the government’s contention that the latter view should be adopted, the Court, speaking through Mr. Justice Frankfurter, recognized that the answer could not be found in the words of the statute. Instead, the Court based upon legislative history its conclusion that the defendant’s course of conduct rather than its individual acts constituted the unit of crime. Here, we do not have to resort to legislative history, for sufficient guidance is found in the statute itself. The Landrum-Griffin Act requires all labor organizations to file annual reports" }, { "docid": "23432058", "title": "", "text": "Corp., 344 U.S. 218, 221, 43 S.Ct. 227, 97 L.Ed. 260 (1952) and United States v. Bent, 175 F.2d 397, 400 (8th Cir.), cert. denied, 338 U.S. 829, 70 S.Ct. 79, 94 L.Ed. 504 (1949)). Professor Wright correctly states, however, An indictment or information charging the same offense in more than one count is multiplicitous, but this also is not fatal and does not require dismissal of the indictment. Defendant may move to have the prosecution elect, and the counts will be consolidated and all but the one elected dismissed, but even this is discretionary with the court. The principal danger in multiplicity is that defendant will be given multiple sentences for the same offense. A remedy is available at any time if defendant is given multiple sentences. 1 C. Wright, Federal Practice and Procedure, § 145, at 336 (1969) (citations omitted). In this case defendant moved only for a dismissal to which he was not entitled. The trial judge agreed with defendant that only one offense was charged. With defendant’s express agreement he so instructed the jury. Defendant did not object to the form of the verdict. We cannot perceive a basis for any suggestion that in this very simple, straightforward fact situation the psychological climate among the jury could have been made adverse to the plaintiff by the form of the indictment. The plaintiff was not surprised, is fully protected from double jeopardy, has demonstrated no prejudice whatever, and was given one sentence only. We conclude that there is no merit to the contention. III. Prior to trial defendant filed a formal written motion requesting that all bench conferences and proceedings in chambers be transcribed by the official court reporter. During the trial, however, numerous bench conferences and conferences in chambers were held without a recording of the proceedings. The court followed what the parties describe as its usual practice by affording counsel for defendant an opportunity to “make a record” at the next recess of court. Defendant claims that this procedure was too burdensome and that he was prejudiced by the trial court’s failure to enforce the" }, { "docid": "23545617", "title": "", "text": "the latter type are exempted from the prohibition of the statute by Subsection (c). In urging reversal the first point, the appellant makes is that the Government should have been compelled to elect which one of the thirty-four counts it chose to stand upon. The appellant’s, theory is that there were not thirty-four offenses committed here but only one. For this proposition he relies heavily upon the Supreme Court’s decision in United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). There the Court, through Mr. Justice Frankfurter, discussed the question whether a statutory provision defining an offense is directed toward a. course of conduct or toward each performance of the forbidden act. The Court, came to the conclusion that the Fair Labor Standards Act proscribes a course of conduct and not a series of individual offenses. The appellant also relies upon. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), in which the prosecution charged two violations of the Mann Act where the defendant in one trip took two women across a state line for immoral purposes. But, as the Court pointed out in that case, this was an improper endeavor to turn a single transaction into multiple offenses. In contrast to Universal C. I. T. and Bell, one may point to convictions for offenses against, the narcotics statutes and against statutes dealing with the illicit manufacture,, transportation and sale of untaxed alcoholic beverages, where a single act may constitute an offense against several prohibitions of the statute and be penalized! accordingly. It is, of course, true, as. the Court points out in the Universal C. I. T. case, that the question whether the legislation looks toward penalizing a course of conduct or individual offenses is not always sun-clear. However, we see no reason for concluding that in this case a course of conduct is struck at. Here were individual receipts of money from the company over many months, and each time the defendant received a check from the company he was doing that which" }, { "docid": "15141", "title": "", "text": "of this opinion, it is worth' noting in any event the court specifically took notice of the fact that the sentences on all three counts were designated to run concurrently. . Again in Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), the defendant was charged in two separate counts of an indictment with violation of 18 U.S.C. § 254 prohibiting assault on a federal officer in the performance of his duty. Proofs there showed that the defendant had discharged a shotgun into the front seat of an automobile thereby wounding two federal officers. This posed the question whether Congress meant that a single discharge of a shotgun would constitute one assault and thus only one offense regardless of the number of officers who had been injured, or whether Congress intended to define a separate offense for each federal officer affected by the shotgun blast. Relying upon Bell and upon United States v. Universal CIT Credit Corporation, 344 Ú.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), the Supreme Court held that a general judicial policy of lenity prohibits interpreting a federal criminal statute to increase the penalty “it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner, supra, 358 U.S. at 178, 79 S.Ct. at 214. After examining the statutory language and relevant legislative history, the Court stated: If Congress desires to create multiple offenses from a single act affecting more than one federal officer, Congress can make that meaning clear. We thus hold that the single discharge of a shotgun alleged by the petitioner in this case would constitute only a single violation of § 254. Id. See also United States v. Woods, 568 F.2d 509 (6th Cir.), cert, denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 64 (1978), where the defendant had been found guilty on four sepa rate counts of an indictment charging violations of the narcotics laws. On appeal, our court merged counts 1 and 2 which essentially charged Woods with possession of specific but" }, { "docid": "14854033", "title": "", "text": "and Helpers, Meat Drivers and Helpers Union, Local 710, a division of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Union. That, during these years, defendant was a business agent for Local 710 and that, during this period, Local 710 was a labor organization. Counts twenty-seven and forty were dismissed on motion of the Government. Defendant was sentenced to the custody of the Attorney General on February 19, 1963 for imprisonment for- a period of one year on each of counts one, two, three, four and five of the indictment, and a fine of $1,000 and costs of prosecution were imposed for each of these counts. These sentences were to run consecutively and the fines were cumulative. On each of counts six through twenty-six, twenty-eight through thirty-nine and forty-one through forty-eight, defendant was sentenced for a period of one year, these sentences to run concurrently with the sentence imposed on count five. On appeal, defendant contends that certain rulings and instructions of the district court constituted prejudicial error, that the Government failed to prove an element of the offense and that counts forty-one through forty-eight were so vague as to violate the Sixth Amendment. I. Defendant alleges that the court erred in not requiring the Government to elect a single count of the indictment upon which to prosecute and dismiss the remaining counts. Defendant argues that the statute does not make a separate crime out of each payment, but rather, it is a course of conduct which is prohibited, and therefore only one offense, if any is made out by the Government’s case. Defendant relies upon, inter alia, Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) ; United States v. Universal Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); and United States v. Inciso, 7 Cir., 292 F.2d 374 (1961), cert. denied, 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135. We disagree. The Third Circuit was presented with this same issue in United States v. Alaimo, 3 Cir., 297 F.2d 604 (1961), cert. denied, 369 U.S. 817, 82 S.Ct." }, { "docid": "11198444", "title": "", "text": "the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution.” Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (emphasis added). Indeed, “a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts where the body of facts upon which the indictment gives rise to only one criminal offense or to more than one.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 97 L.Ed. 260 (1952). The Supreme Court “has long acknowledged the Government’s broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case.” Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Accordingly, the Government may prosecute a defendant under separate statutes even when conviction and punishment under multiple statutes may not be appropriate. Id.; see also United States v. Thomas, 810 F.2d 478, 479 (5th Cir.1987). Nevertheless, the Fifth Circuit has identified two dangers arising from a multiplicitous indictment. United States v. Smith, 591 F.2d 1105, 1108 (5th Cir.1979). First, “[t]he chief danger raised by a mul-tiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” Planck, 493 F.3d at 503 (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.1985)). However, this danger is only inchoate at the time of charging and does not become full-fledged until after sentencing on purportedly multiplicitous counts. Accordingly, an indictment charging multi-plicitous counts does not require dismissal, and any compelled election of counts before sentencing is in a court’s discretion. Smith, 591 F.2d at 1108. In deciding how to exercise its discretion, the Court notes that an additional danger may arise from a multiplici-tous indictment: “namely an adverse psychological effect on the jury may result from the suggestion that several crimes have been committed.” Smith, 591 F.2d at 1108 (citing United States v. Hearod, 499 F.2d 1003 (5th Cir.1974));" }, { "docid": "8554304", "title": "", "text": "offense under Section 17(a), 15 U.S.C.A. § 77q(a), venue was proper in the Southern District of Alabama where the fraudulent scheme was hatched, where the defendants resided and where all steps taken in the execution of the scheme, other than the mailings charged in the indictment, took place. The Court distinguished the Securities Act from the mail fraud statute, where the mailing is considered to be the gravamen of the crime and venue proper only where mailed, received or in a district through which the mailed matter passes. This holding in respect to venue was pri marily a construction of Rule 21(b) Federal Rules of Criminal Procedure and the general venue statute for continuing offenses, 18 U.S.C.A. § 3237(a), with which we are not here concerned. In Hughes, under the indictment there before the Court, it was held that under Section 17(a) (1) the fraudulent course of conduct was the crime, not individual mailings in furtherance thereof, and, there being but a single “device, scheme or artifice” to defraud alleged, the Court ordered consolidation of all counts for trial and dismissed all but the first for multiplicity, applying the policy of lenity announced in United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). In Greenberg, another Judge of that district followed Hughes. But, in United States v. Binstock, 37 F.R.D. 13 (S.D. N.Y.1965), a third said: “Whether these decisions were right or wrong as to the particular indictments there involved is not presently of importance. It does seem to me that if there are separate offers or sales of securities to different persons, there are separate offenses under 15 U.S.C.A. § 17q(a) even though there may be a single scheme.” (37 F.R.D. at p. 16. Emphasis supplied.) In our opinion, the decisions of United States v. Universal C. I. T. Corp., supra,, and the later cases of Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (.1955); and Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) do not require the" } ]

[ { "docid": "22445432", "title": "", "text": "the uninformed use of credit. 15 U.S.C. § 1601. Congress, to effectuate this end, requires that a creditor make certain disclosures to the consumer. 15 U.S.C. §§ 1632-39. If the disclosures are not made, there are civil sanctions which may be imposed on the creditor, 15 U.S. C. § 1640, but the “action under this section may be brought . . . within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). The statute also gives the consumer the right to rescission, 15 U.S.C. § 1635, as explained in the majority opinion. The majority holds that the rescission remedy provides sufficient protection for the consumer so that the violation as mentioned in § 1640(e) occurs at the time the parties entered into the agreement and the statute of limitations begins to run at that time. If the statute is to be interpreted as the majority have construed it, its effectiveness is limited. It is not difficult to imagine a situation where a consumer has entered into an agreement with a creditor which requires repayment of a loan over a period of five years or more. The creditor does not make disclosures as required by the Act and the consumer is an uninformed one whom the Act was designed to protect. The terms of the agreement are such that the offensive part of the financing does not evidence itself in the loan repayment schedule until after the first year. Under the majority opinion, the consumer will not be able to sue for damages when he becomes aware of the offensive financing since the statute of limitations has run. The consumer at this point is left with the rescission remedy only. Assuming a successful suit by the consumer, it still provides little deterrent effect for the creditor who chose not to disclose since the parties are merely returned to their original positions. In other words, if no disclosures are made the creditor need only fear that the contract may be rescinded but he need not fear any civil liability. To protect the creditor from civil liability" } ]

[ { "docid": "5087736", "title": "", "text": "of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (quoting Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990)). But when a party repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See Ferdik v. Bonzelet, 963 F.2d 1258,1261 (9th Cir.1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend). IV. DISCUSSION A. Truth in Lending Act Mr. Jara brings a claim against Aurora for violation of TILA. TILA aims to “avoid the uninformed use of credit.” 15 U.S.C. § 1601(a). It “has the broad purpose of promoting ‘the informed use of credit’ by assuring ‘meaningful disclosure of credit terms’ to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (quoting 15 U.S.C. § 1601). It “requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (citing 15 U.S.C. §§ 1631, 1632, 1635 & 1638). Mr. Jara alleges that Aurora failed to notify him of the “the identity of the actual owner” of his loans in violation of 15 U.S.C. § 1641(g). Fourth AC, ECF No. 72, ¶ 11. Subsection (g), which was added to § 1641 as part of the Helping Families Save Their Homes Act and which became effective on May 19, 2009, provides in relevant part: In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including— (A) the identity, address, telephone number of the new creditor; (B) the date of transfer; (C) how to reach an agent or party having" }, { "docid": "20442312", "title": "", "text": "information and belief, failed to deliver all ‘material’ disclosures required by TILA, [the Truth in Lending Act], and [the] Real Estate Settlement Procedures Act (“RESPA”) ... prior to the loan transaction ... [or] ... in writing upon application for the loan or, at the latest, three (3) days subsequent to the lenders receipt of the loan application.” (Compl. ¶52^)-0)).) Plaintiffs also allege that Defendant may have violated TILA by “(i) under-disclosing the finance charge and APR; (ii) failing to provide two copies of the notice of right to rescind and an accurate date for the expiration of the rescission period; [and] (iii) failing to disclose properly and accurately the number, amount and due dates or period of payments scheduled to repay the obligations.” (Id. ¶ 53.) Because of these alleged violations, Plaintiffs seek to invoke their rights to rescind the loan transaction and to recover damages from Defendant. See 15 U.S.C. §§ 1635,1640. With respect to Plaintiffs’ action to recover damages, Defendant contends that Plaintiffs filed their claim after the expiration of TILA’s one year statute of limitation. Title 15 U.S.C. § 1640(e) states that “any action [for damages] may be brought in any United States district court ... within one year from the date of the occurrence of the violation ----” Defendant asserts that the statute of limitations on Plaintiffs’ claim for damages under TILA began to run on June 5, 2006, the date the Loan transaction was closed, and therefore expired on June 5, 2007. See Tucker v. Beneficial Mortg. Co., 437 F.Supp.2d 584, 589 (E.D.Va.2006) (“If the violation is one of disclosure in a closed-end credit transaction, ‘the date of the occurrence of the violation is no later than the date the plaintiff enters the loan agreement.’ ”) (quoting Smith v. Am. Fin. Sys., 737 F.2d 1549, 1552 (11th Cir.1984)). Because Plaintiffs did not file their complaint until October 1, 2008, Defendant asks the court to grant it summary judgment as to this claim. In response, Plaintiffs argue that the statute of limitations should be equitably tolled based on an argument that Defendant fraudulently concealed facts that" }, { "docid": "18332408", "title": "", "text": "the total loan amount is $204,060.64, application of the arithmetic formula (using settlement charges totaling $11,939.36 divided by the loan amount of $204,060.64) yields fees and points that are approximately 5.8% of the total loan amount. Therefore because the loan at issue is not a HOEPA loan, the TILA claim must be dismissed. Moreover all TILA actions for damages must be brought within one year of the occurrence of the alleged violation. 15 U.S.C. § 1640(e). Actions for rescission must be brought within three years. 15 U.S.C. § 1635(f). Beach v. Ocwen Federal Bank, 523 U.S. 410, 419, 118 S.Ct. 1408, 1413, 140 L.Ed.2d 566 (1998) (“We respect Congress’s manifest intent by concluding that the Act permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run.”). Therefore, even assuming the Plaintiff did state a claim for damages under TILA, her claim would be too late. A claim for rescission, although it would have been timely if made, was not included in the Amended Complaint. THE MCCCDA CLAIM “The MCCCDA was closely modeled on TILA, Mayo v. Key Fin. Services, Inc., 424 Mass. 862, 864, 678 N.E.2d 1311 (1997), and its provisions should be construed in accordance with TILA. In re Desrosiers, 212 B.R. 716, 722 (Bankr.D.Mass.1997).” In re Hart, 246 B.R. 709, 738 (Bankr.D.Mass.2000). In fact MCCCDA is sometimes referred to as the “Massachusetts TILA.” Unlike TILA, however, claims for damages for violations of MCCCDA may be brought within four years of their occurrence, M.G.L. c. 260 § 5A, as may claims for recission. M.G.L. c. 140D § 10. Claims under MCCDA can arise from non-disclosures, inaccurate disclosures, and with respect to certain transactions, untimely disclosures. See e.g., M.G.L. c. 140D § 12. With respect to high interest loans as defined by 209 C.M.R. 32.32, additional disclosures are required and liability can also arise by certain affirmative acts. See, e.g., 209 C.M.R. 32.32(3), and (4). In the instant case, the Amended Complaint contains the following allegations that arguably could support a claim under MCCCDA: 25. On information and belief, Ameri-quest failed to" }, { "docid": "4866708", "title": "", "text": "that lenders disclose certain details about loans, fees, and costs.” Davis v. Wilmington Fin., Inc., No. PJM 09-1505, 2010 WL 1375363, at *4 (D.Md. Mar. 26, 2010). Plaintiffs TILA claims are scattered throughout the complaint and generally assert that she did not receive accurate disclosures regarding itemization of finance charges or interest rates related to the refinancing of her home. The statute of limitations for claims for monetary damages arising under TILA is “one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). This limitations period begins to run when the borrower accepts the creditor’s extension of credit. Wachtel v. West, 476 F.2d 1062, 1065 (6th Cir.1973); Davis, 2010 WL 1375363, at *4; Woodrow v. Vericrest Fin., Inc., No. AW-09-1612, 2009 WL 4348594, at *2-3 (D.Md. Nov. 30, 2009). As previously noted, the refinancing of Plaintiffs home took place on September 7, 2007, and she did not file her complaint until nearly four years later. Accordingly, her TILA claims are time-barred and must be dismissed. C. RICO Claim Defendants have moved to dismiss Plaintiffs RICO claim as insufficiently pled. Plaintiff appears to bring her RICO claim pursuant to 18 U.S.C. § 1962(c). “In order for a RICO claim to survive a Rule 12(b)(6) motion to dismiss, Plaintiff[ ] must allege ‘(1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering.’ ” Davis, 2010 WL 1375363, at *3 (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). Plaintiffs sparse allegations wholly fail to satisfy these requirements. First, Plaintiff provides no factual allegations that Defendants were engaged in an enterprise. “[A]n enterprise [is] defined as an ongoing organization, formal or informal, in which the various associates function as a continuing unit.” Delk v. ArvinMeritor, Inc., 179 F.Supp.2d 615, 626-27 (W.D.N.C.2002), aff'd, 40 Fed.Appx. 775 (4th Cir.2002). The complaint states only that “Defendants engaged in a mortgage lending enterprise.” (ECF No. 1 ¶ 106). It contains no factual averments regarding the relationships between or among Defendants, much less how they “function[ed] as a continuing unit.” Delk, 179" }, { "docid": "17427214", "title": "", "text": "to 15 U.S.C. § 1640(e), a borrower seeking damages under TILA must file an action “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). Even after the one-year period has expired, however, a borrower may nonetheless assert the right to damages “in an action to collect the debt ... as a matter of defense by recoupment or set-off in such action.” Id. It is well-settled law that where a claim for damages under TILA is premised on the failure to provide material disclosures, “the ‘date of the occurrence of the violation’ is no later than the date the plaintiff enters the loan agreement or, possibly, when defendant performs by transmitting the funds to plaintiffs.” Cardiello v. Money Store, Inc., No. 00-CV-7332, 2001 WL 604007, at *3, 2001 U.S. Dist. LEXIS 7107, at *19 (S.D.N.Y. June 1, 2001) , aff'd, 29 Fed.Appx. 780 (2d Cir.2002) ; see also Johnson v. Scala, No. 05-CV-5529, 2007 WL 2852758, at *3, 2007 U.S. Dist. LEXIS 73442, at *10 (S.D.N.Y. Oct. 1, 2007) (“Case law supports the notion that the statute of limitations for TILA claims does not start running upon the discovery of the non-disclosure, but, rather, upon the funding of the loan.”). Plaintiff argues that the one-year statute of limitations does not apply here because her claims for damages in effect constitute a recoupment defense to the foreclosure sale initiated by defendants. (ECF No. 18-3, PL Opp. at 17-19.) Plaintiffs argument is unavailing. In contrast to the language in 15 U.S.C. § 1635(i)(2), which reduces the tolerance for accuracy applicable for rescission “after initiation of any judicial or nonjudicial foreclosure process,” the language in 15 U.S.C. § 1640(e) refers only to an “action to collect the debt .... ” (emphasis added). In order to bring a claim for damages after the one-year limitations period has expired, plaintiff must assert her claims as a defense by recoupment “in a collection action brought by the lender.” Beach, 523 U.S. at 412, 118 S.Ct. 1408. “[B]ecause here plaintiff asserts [her] TILA claim affirmatively, in an action for damages that" }, { "docid": "8353273", "title": "", "text": "F.3d 1097, 1106 (9th Cir.2003) (emphasis and internal quotation marks omitted). IV. DISCUSSION AND ANALYSIS A. TILA Claim Plaintiff asserts a TILA claim against Sierra Pacific for damages and rescission. Sierra Pacific allegedly violated TILA by: “(a) failing to provide required disclosures prior to consummation of the transaction; (b) failing to make required disclosures clearly and conspicuously in writing; (c) failing to timely deliver to Plaintiff notices required by TILA; (d) placing terms prohibited by TILA into the transaction; and (e) failing to disclose all finance charge details and the annual percentage rate based upon properly calculated and disclosed finance charges and amounts financed.” (Doc. 14 at 11.) Sierra Pacific argues that Plaintiffs TILA claim for damages and rescission are both time-barred, and that the complaint fails to allege facts sufficient to demonstrate a right to rescission. 1. Damages Claim TILA “requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). Failure to satisfy TILA’s requirements exposes a lender to “statutory and actual damages [that are] traceable to a lender’s failure to make the requisite disclosures.” Id. A TILA claim for damages must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e); see also Beach, 523 U.S. at 412, 118 S.Ct. 1408. For statute of limitations purposes, the “occurrence of the violation” takes place on the “consummation of the transaction.” King v. California, 784 F.2d 910, 915 (9th Cir.1986). Here, according to the complaint, the transaction was consummated “on or about May 11, 2006.” (Doc. 14 at 7.) Plaintiff had until May 2007 to file his TILA claim for damages. Plaintiff, however, filed his TILA claim for damages on May 4, 2009, well past the deadline. (See Doc. 1.) Accordingly, Plaintiffs TILA claim for damages - is time-barred absent equitable tolling. As explained in King, TILA’s one-year limitations period may be extended through equitable tolling: [T]he limitations period" }, { "docid": "8353274", "title": "", "text": "410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). Failure to satisfy TILA’s requirements exposes a lender to “statutory and actual damages [that are] traceable to a lender’s failure to make the requisite disclosures.” Id. A TILA claim for damages must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e); see also Beach, 523 U.S. at 412, 118 S.Ct. 1408. For statute of limitations purposes, the “occurrence of the violation” takes place on the “consummation of the transaction.” King v. California, 784 F.2d 910, 915 (9th Cir.1986). Here, according to the complaint, the transaction was consummated “on or about May 11, 2006.” (Doc. 14 at 7.) Plaintiff had until May 2007 to file his TILA claim for damages. Plaintiff, however, filed his TILA claim for damages on May 4, 2009, well past the deadline. (See Doc. 1.) Accordingly, Plaintiffs TILA claim for damages - is time-barred absent equitable tolling. As explained in King, TILA’s one-year limitations period may be extended through equitable tolling: [T]he limitations period in Section 1640(e) runs from the date of consummation of the transaction but ... the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action. Therefore, as a general rule the limitations period starts at the consummation of the transaction. The district courts, however, can evaluate specific claims of fraudulent concealment and equitable tolling to determine if the general rule would be unjust or frustrate the purpose of the Act and adjust the limitations period accordingly. 784 F.2d at 915. “Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th Cir.2000); see also Garcia v. Brockway, 526 F.3d 456, 465 (9th Cir.2008). “Fairness, without more, is not sufficient justification to invoke equitable tolling ----” Garcia, 526 F.3d at 466. Here, Sierra Pacific’s failure to make" }, { "docid": "1929230", "title": "", "text": "not assigned the Mortgage until August 23, 2007 — over a year after consummation of the loan transaction, it would be futile to allow further leave to attempt to state a TILA damages claim against U.S. Bank. See, e.g., Mirmehdi, 662 F.3d at 1082-83. Here, however, the court does not sua sponte dismiss the TILA claim for damages as to the other Defendants. In this regard, the one-year statute of limitations in § 1640(e) is an affirmative defense that a defendant has the burden of raising and establishing. See, e.g., Radford v. Wells Fargo Bank, 2011 WL 1833020, at *7 (D.Haw. May 13, 2011). Because no Defendant other than U.S. Bank has officially appeared in the action, no other Defendant has met a burden to raise this affirmative defense. See Caniadido v. Countrywide Bank, FSB, 2011 WL 2470640, at *8 (D.Haw. June 20, 2011) (“As the limitations period is a matter on which a defendant bears the burden, this court does not here sua sponte dismiss the damage claim against [the unserved defendant] on statute of limitations grounds.”). b. Rescission under TILA As to Plaintiffs’ claim for rescission pursuant to TILA, Doc. No. 7, SAC ¶ 79, TILA provides a right to rescind a loan transaction “until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing [the required material disclosures.]” 15 U.S.C. § 1635(a). If the required disclosures are not provided, however, the right to rescission expires “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first[.]” 15 U.S.C. § 1635(f). Section 1635(f) is an absolute statute of repose barring “any [TILA rescission] claims filed more than three years after the consummation of the transaction.” Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.2002) (citing King, 784 F.2d at 913). That is, the three-year period is not subject to equitable tolling. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566" }, { "docid": "8230967", "title": "", "text": "limitation provision states that “[a]ny action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). The limitation period commences on the date “the borrower discovers or had reasonable opportunity to discover the fraud involving the complained of TILA violation.” Jones v. TransOhio Sav. Ass’n, 747 F.2d 1037, 1043 (6th Cir.1984). Equitable tolling is available. Id.; Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 504 (3d Cir.1998); Ellis v. GMAC, 160 F.3d 703, 706 (11th Cir.1998) (collecting cases agreeing that the TILA limitation provision is subject to equitable tolling). “The doctrine of equitable tolling suspends the running of the statute of limitations if a plaintiff, in the exercise of reasonable diligence, could not have discovered information essential to the suit.” Gonzalez v. United States, 284 F.3d 281, 291 (1st Cir.2002). The Darlings closed on the IndyMac loan on May 12, 2005, and commenced this civil action on October 3, 2006, just over 16 months later. The facts reflect that the Darlings understood as of August 2005 that their loan was negatively, amortizing and that they contacted IndyMac to express them concern at that time. By August 30, 2005, they had submitted a complaint to the Maine State Office of Consumer Credit regulation. On this record, there can be no legitimate dispute but that the Darlings had discovered the alleged fraud as of August 30, 2005, or sooner. Their TILA cause of action is time barred even if the Court assumes that Western, as a broker, is a creditor subject to the TILA’s disclosure requirements. 2. Genuine issues of material fact exist on all of the supplemental state law claims. The factual core of this case is that the Darlings allegedly relied on false representations made by a mortgage broker whose services they sought in order to obtain a mythical one percent loan with a rate that would not likely grow more than one-tenth of a percentage point annually. On one version of the facts," }, { "docid": "16806353", "title": "", "text": "turns to Plaintiffs’ claims. A. TILA Claims TILA “has the broad purpose of promoting ‘the informed use of credit’ by assuring ‘meaningful disclosure of credit terms’ to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). See U.S.C. § 1601(a). Accordingly, creditors are required “to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). With respect to TILA violations, Plaintiffs argue Defendants failed to (1) provide unspecified material disclosures regarding their loan, (2) include the required copies of the Notice of Right to Cancel form at the time Plaintiffs’ loan was consummated, and (3) honor Plaintiffs’ March 2010 rescission of the loan. Am. Compl. at 2, 5; Ex. C [DE-15.3]. Plaintiffs contend further that MERS “does not have standing as a Nominee” and that MERS “did not have legal authority to transfer” the note. Am. Compl. at 3-4. While the amended complaint is far from a model of clarity, these allegations suggest that the TILA-related issues before the court are whether the alleged non-disclosures and failure to provide the required notice preserved Plaintiffs’ right to rescind for three years, see 15 U.S.C. § 1635(f), and whether Plaintiffs have alleged that Defendants violated TILA’s rescission procedures by failing to adequately respond to their rescission notice, see id. § 1635(b). Defendants provide no substantive briefing, arguing only that they are not “creditors” within the meaning of TILA and the statute of limitations bars any claim under TILA for damages. 1. Liability of BAC and MERS under TILA Only creditors and assignees are subject to liability under TILA. See 15 U.S.C. §§ 1640, 1641(a). As a threshold matter, the court initially dispenses with the issue of whether Defendants qualify as creditors as defined by 15 U.S.C. § 1602(g) and 12 C.F.R. § 226.2(a)(17), as the amended complaint, like the original complaint, contains no allegations or inference that either MERS or BAG was the" }, { "docid": "10744767", "title": "", "text": "“[t]his right of rescission under Chapter 93A would constitute a preservation of the right to rescind in recoupment.” Notably, the Debtor did not seek damages pursuant to 15 U.S.C. § 1640(a). Pursuant to § 1640(e), any action for damages must be brought within one year from the date on which the first regular payment of principal is due under the loan, i.e. May 1, 2009. The Debtor’s claims against the Defendants under the TILA and Chapter 93A are barred by the applicable statutes of limitation. In addition, the Court finds that the Debtor failed to provide the Defendants with a proper demand under Chapter 93A and her reference to that statute in her Chapter 13 plan does not comply with the requirements or the intention of Mass. Gen. Laws ch. 93A. “Congress enacted the TILA in 1968 ‘to assure a meaningful disclosure of credit terms’ and ‘to protect the consumer against inaccurate and unfair credit ... practices.’ ” Palmer v. Champion Mortg., 465 F.3d 24, 27 (1st Cir.2006) (citing 15 U.S.C. § 1601(a)). “To this end, the TILA requires creditors to disclose clearly and accurately all the material terms of a credit transaction.” Id. (citing Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998)). With respect to non-purchase-money mortgages on residential dwellings, TILA confers upon the debtor a right to rescind within three days of the transaction’s consummation or three days from delivery of the material disclosures, whichever occurs later. See 15 U.S.C. § 1635(a). The credi tor must clearly disclose this rescission right to the debtor. See 12 C.F.R. § 226.23(b)(1). If a creditor fails to deliver any of the required material disclosures (including notice of the right to rescind), the debtor may rescind at any time up to three years following the consummation of the transaction. See id. § 226.23(a)(3). If a creditor does not respond to a rescission request within twenty days, the debtor may file suit in federal court to enforce the rescission right. See Belini v. Wash. Mut Bank, 412 F.3d 17, 20 (1st Cir.2005); see also 15" }, { "docid": "520212", "title": "", "text": "otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” Id. The borrower’s right to rescind applies equally against the original creditor and subsequent assignees. 15 U.S.C. § 1641(c). 15 U.S.C. § 1635(g) provides, “In any action in which it is determined that a creditor has violated this section, in addition to rescission the court may award relief under section 1640 of this title for violations of this subehapter not relating to the right to rescind.” 15 U.S.C. § 1640(a) allows private causes of action for monetary damages. However, 15 U.S.C. § 1640(e) establishes a limitation period on damages claims, providing that “[a]ny action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” Where a creditor refuses to cancel a loan after receiving timely notice of rescission, the creditor violates TILA. Miguel, 309 F.3d at 1165. Pursuant to 15 U.S.C. § 1640(e), the obligor has one year from the date of refusal to file suit for damages arising out of the failure to rescind. Id. Additionally, a creditor violates TILA where they make inaccurate disclosures, and an obligor has one year from each of the lender’s inaccurate disclosures to file suit. Hubbard v. Fidelity Federal Bank, 91 F.3d 75, 79 (9th Cir. 1996). 1. Rescission Plaintiffs contend that due to defendants’ TILA violations, they are entitled to 15 U.S.C. § 1635(f)’s extended three-year right of rescission. Assuming arguendo that plaintiffs are entitled to the three-year statute of limitations, plaintiffs’ right of rescission expired on or about May 17, 2008, three years from the date of consummation of the loan agreements. According to 12 C.F.R. § 226.23(a)(2), in order to exercise the right of rescission the obligor must “notify the creditor of the rescission by mail, telegram, or other means of written communication,” and notice is deemed effective when mailed. See also Toscano v. Ameriquest Mortg. Co., 2007 WL 3125023 (E.D.Cal.2007) (stating that while the law is" }, { "docid": "7744443", "title": "", "text": "Home Loan Corp., 475 F.3d 418, 421 (1st Cir.2007) (citing 15 U.S.C. § 1635). A creditor must “clearly and conspicuously disclose” this right to the borrower along with “appropriate forms for the [borrower] to exercise his right to rescind.” 15 U.S.C. § 1635(a). If a creditor fails to provide the borrower with the required notice of the right to rescind, the borrower has three years from the date of consummation to rescind the transaction. Id. § 1635(f); see 12 C.F.R. § 226.23(a)(3) (“If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation.”). “[Section] 1635(f) completely extinguishes the right of rescission at the end of the 3-year period.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998); see also Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.2002) (“[Section 1635(f) represents an ‘absolute limitation on rescission actions’ which bars any claims filed more than three years after the consummation of the transaction.” (quoting King v. California, 784 F.2d 910, 913 (9th Cir.1986))); Cazares v. Household Fin. Corp., 2005 WL 6418178, at *8, 2005 U.S. Dist. LEXIS 39222, at *24-25 (C.D.Cal.2005) (concluding that, “[i]f certain Plaintiffs did exercise their rights to rescind[] prior to the expiration of the three-year limitation period,” such facts “would only entitle Plaintiffs to damages, not rescission” (citing Belini v. Wash. Mut. Bank, FA, 412 F.3d 17 (1st Cir.2005))). Plaintiffs argue that the Complaint, filed February 9, 2010, acted to rescind the loan. (Docket No. 1.) However, plaintiffs’ loan closed on July 13, 2003, putting their notice of rescission well outside of the three-year limitations period. (FAC Ex. 1.) Even if plaintiffs were legally entitled to equitable tolling of their claim, plaintiffs have not alleged any facts in the Complaint that would warrant tolling the statute of limitations. Plaintiffs simply assert that they were unable to discover defendants’ TILA violations until two weeks before the filing of the FAC because defendants “fraudulently concealed those violations .... ” (FAC ¶ 34.) This eonclusory allegation is insufficient to establish the necessity" }, { "docid": "8948664", "title": "", "text": "time-barred. (Fremont Mem. ¶ 29; U.S. Bank Mem. 14-15; Def. WCS Lending, LLC’s Mem. of Law in Supp. of Mot. to Dismiss Pis.’ Am. Compl. (“WCS Mem.”) 13-14.) Private actions for damages based on TILA violations are subject to a one-year statute of limitations. See Johnson v. Scala, No. 05-CV-5529, 2007 WL 2852758, at *3 (S.D.N.Y. Oct. 1, 2007); see also 15 U.S.C. § 1640(e) (“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”); McAnaney v. Astoria Fin. Corp., No. 04-CV-1101, 2007 WL 2702348, at *12 (E.D.N.Y. Sept. 12, 2007) (“[T]he plain language of Section 1640(e) and the cases interpreting that statute indicate that, where a damages claim under TILA is time-barred, the Court is prohibited from even reaching the question of whether the defendant has violated TILA.”). “It is well-settled law that in ‘closed-end credit’ transactions, like the one at issue, the ‘date of the occurrence of [the] violation’ is no later than the date the plaintiff enters the loan agreement, or possibly, when defendant performs by transmitting the funds to plaintiffs.” Cardiello v. Money Store, Inc., No. 00-CV-7332, 2001 WL 604007, at *3 (S.D.N.Y. June 1, 2001) (footnote omitted) (quoting 15 U.S.C. § 1640(e)) (collecting cases), aff'd, 29 Fed.Appx. 780 (2d Cir.2002); see also Johnson, 2007 WL 2852758, at *3 (“Case law supports the notion that the statute of limitations for TILA claims does not start running upon the discovery of the non-disclosure, but, rather, upon the funding of the loan.”). Here, it is undisputed that the mortgage loan transactions closed on October 12, 2005. (Am. Compl. ¶ 73.) Thus, the applicable statute of limitations ran on October 12, 2006, over a year before Plaintiffs initiated this action by filing the initial Complaint on January 31, 2008. (Dkt. No. 1.) Plaintiffs assert that the limitations period for their TILA claims should be tolled, arguing “that because of the fraudulent concealment of material facts, they were prevented from learning about the misconduct(s) by WCS" }, { "docid": "15193780", "title": "", "text": "Court’s opinion in Beach v. Ocwen Fed. Bank, which held that TILA “permits no federal right to rescind, defensively or otherwise, after the [three]-year period of [15 U.S.C.] § 1635(f) has run.” 523 U.S. 410, 419, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). The First Circuit has only discussed the issue in dicta, and the lower courts within this circuit are in similar disagreement. For the purposes of determining whether to retain jurisdiction, however, I need not reach the substantive issue of the timeliness of the Plaintiffs rescission claims. My focus is limited to whether the Plaintiff would suffer unfair prejudice as a result of dismissal, that is, whether the Plaintiff would suffer unfair prejudice if this substantive issue were to be decided in a different forum. I find she would not. The Plaintiff sent the Notice of Rescission within three years of the date of the Mortgage Transaction but did not file this adversary proceeding until after the three-year period had run. Regardless of the particular judicial forum in which the matter is heard, the risk to the Plaintiff on the rescission limitations issue remains unaltered and dismissal of this proceeding does not result in prejudice to the Plaintiff. The limitation period either expired prior to the initiation of this adversary proceeding or was satisfied pre-bankruptcy, depending on which side of this decisional divide a court lays. b. The Statutory Damages Limitation TILA also affords consumer borrowers a statutory right to damages for violations of 15 U.S.C. § 1635. See 15 U.S.C. § 1640(a). “Regarding the Plaintiffs statutory right to seek damages, [15 U.S.C. §] 1640(e) sets a one year period following the applicable loan transactions.” Vasquez v. Countrywide Home Loans, Inc. (In re Vasquez), Adversary No. 10-1020, 2011 WL 2671301, at *1 (Bankr.D.R.I. July 7, 2011); see also Belini v. Wash. Mut. Bank, FA, 412 F.3d 17, 25 (1st Cir.2005) (quoting 15 U.S.C. § 1640(e)) (“The statute of limitations for bringing an action under [15 U.S.C. §] 1640 ‘is one year from the date of the occurrence of the violation.’ ”). The Plaintiff is correct that the Defendant’s" }, { "docid": "1929231", "title": "", "text": "of limitations grounds.”). b. Rescission under TILA As to Plaintiffs’ claim for rescission pursuant to TILA, Doc. No. 7, SAC ¶ 79, TILA provides a right to rescind a loan transaction “until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing [the required material disclosures.]” 15 U.S.C. § 1635(a). If the required disclosures are not provided, however, the right to rescission expires “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first[.]” 15 U.S.C. § 1635(f). Section 1635(f) is an absolute statute of repose barring “any [TILA rescission] claims filed more than three years after the consummation of the transaction.” Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.2002) (citing King, 784 F.2d at 913). That is, the three-year period is not subject to equitable tolling. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (stating that “§ 1635(f) completely extinguishes the right of rescission at the end of the 3-year period,” even if a lender failed to make the required disclosures). Plaintiffs’ TILA claim for rescission is based on an August 7, 2006 loan transaction. Plaintiffs filed this action over four years later. Given that equitable tolling cannot apply to this claim, any amendment seeking rescission under TILA would be futile. And unlike the statute of limitations for a TILA damages claim, which is an affirmative defense, a TILA rescission claim is governed by a statute of repose which “permits no federal right to rescind [under TILA], defensively or otherwise, after the [three]-year period of § 1635(f) has run.” Beach, 523 U.S. at 419, 118 S.Ct. 1408. Section 1635(f) therefore “deprives] the courts of subject matter jurisdiction when a § 1635 claim is brought outside the three-year ... period.” Miguel, 309 F.3d at 1164 (emphasis added). Because this court lacks subject matter jurisdiction over this TILA rescission claim, it dismisses the claim sua sponte as to other Defendants" }, { "docid": "21965118", "title": "", "text": "lender failed to disclose to the Debtor and her husband certain finance charges, and the fact that the mortgage was a high cost loan as defined under TILA. Id. ¶¶ 22-24. A TILA violation gives rise to a claim for both actual and statutory money damages. See 15 U.S.C. § 1640(a)(1), (2). Such claims must be brought within one year of the violation. See 15 U.S.C. § 1640(e) (stating that claim may be brought “within one year from the date of the occurrence of the violation”). On the face of the Complaint, then, to the extent affirmative relief is sought, the TILA claim is barred. However, while the applicable statute of limitations may preclude Debtor from asserting TILA violations affirmatively, it does not affect her right to assert them defensively, i.e., by recoupment. See In re Ross, 338 B.R. 266, 269 n. 9 (Bankr.E.D.Pa.2006). And it is recoupment which the Amended Complaint specifically seeks. Amended Complaint, p. 4, WHEREFORE clause. “Recoupment is a common law contract doctrine that allows ‘countervailing claims, which otherwise could not have been asserted together to be raised in a case based upon any one of them.’ ” Integra Bank/Pittsburgh v. Freeman, 839 F.Supp. 326, 330 (E.D.Pa.1993), (citing Lee v. Schweiker, 739 F.2d 870 (3d Cir.1984)). Unlike setoff, recoupment “lessens or defeats any recovery by the plaintiff.” Algrant v. Evergreen Valley Nurseries L.P., 126 F.3d 178, 184 (3d Cir.1997) (quoting Household Consumer Discount Co. v. Vespaziani, 490 Pa. 209, 219, 415 A.2d 689, 694 (1980)). A party may assert recoupment as a defense after a statute of limitations period has lapsed. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 417-418, 118 S.Ct. 1408, 1412, 140 L.Ed.2d 566 (1998). The defense must be related to the nature of the demand made by the other party, that is, it must arise from the same contractual transaction. Algrant, 126 F.3d at 184. In this case, the TILA claims arise out of the mortgage loan. It is alleged that the lender failed to disclose certain finance charges and the “high cost” of the mortgage loan. Amended Complaint, ¶¶ 22-24. Although" }, { "docid": "18332405", "title": "", "text": "under Rule 12(b)(6).” Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998). COUNT I: TILA AND MCCCDA THE TILA CLAIM Congress enacted the TILA in 1968 “to assure a meaningful disclosure of credit terms” and “to protect the consumer against inaccurate and unfair credit ... practices.” 15 U.S.C. § 1601(a). To accomplish this goal, the TILA requires creditors to disclose, clearly and accurately, all the material terms of consumer credit transactions. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). When creditors transgress this baseline rule, they are subject both to criminal penalties for willful and knowing violations, see 15 U.S.C. § 1611, and to debtors’ claims for damages, see id. § 1640(a). McKenna v. First Horizon Home Loan Corp., 475 F.3d 418, 421 (1st Cir.2007). Importantly TILA “is not a general prohibition of fraud in consumer transactions or even in consumer credit transactions. Its limited office is to protect consumers from being misled about the cost of credit.” Gibson v. Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7th Cir.1997)(emphasis added). HOEPA, however, was enacted as an amendment to TILA to provide increased protection to consumers entering into high interest loans (“HOEPA loans”) as defined under 15 U.S.C. § 1602(aa). For those borrowers whose mortgages qualify as HOEPA loans, the creditor has an obligation to not extend credit “based on the consumers’ collateral without regard to the consumers’ repayment ability, including the consumers’ current and expected income, current obligations, and employment.” 15 U.S.C. § 1639(h). Therefore whether Ameriquest owed a duty to the Plaintiff under § 1639(h) turns on whether the loan was a HOEPA loan. HOEPA loans, as defined in 15 U.S.C. § 1602(aa)(l), are mortgages that are consumer credit transactions “secured by the consumer’s principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan,” if one of two circumstances are present, namely: (A) the annual percentage rate at consummation of the transaction will exceed by more than 10 percentage points the yield on" }, { "docid": "21814888", "title": "", "text": "monetary damages under the TILA and RESPA are each subject to a one-year statute of limitations period. See 15 U.S.C. § 1640(e) (“[a]ny action under this section may be brought ... within one year from the date of the occurrence of the violation”); 12 U.S.C. § 2614 (“[a]ny action pursuant to [the applicable section] may be brought ... within ... 1 year ... ”). The right to rescind a transaction under TILA expires after the earlier of three years or the sale of the property. See 15 U.S.C. § 1635(f) (“[a]n obligor’s right of rescission shall expire three years after the date of the transaction or upon the sale of the property, whichever occurs first ...”). In this case, Fremont’s loan transaction occurred in September 2005, Compl. ¶ 20, and the subject property was sold on July 9, 2007, see Def.’s Mot. at 3 n. 2 & Ex. 1 (7/9/07 Deed of Trust). Because this lawsuit was filed on April 8, 2008, Plaintiffs’ damages claims under TILA and RESPA are untimely by more than 18 months, and Plaintiffs’ rescission claims are untimely by more than 8 months. Plaintiffs raise two arguments to avoid the statute of limitations bar but neither is meritorious. Plaintiffs first argue that their damages claims are timely because the statute of limitations periods for damages and rescission claims may be aggregated (to equal four years) when a defendant fails “to provide the required disclosure [under TILA].” Pis.’ Opp’n at 12. That argument is puzzling given the express language of the statute that specifies a one-year limitations period for damages actions, see 15 U.S.C. § 1640(e), and given the Supreme Court’s holding that section 1635(f) expressly limits the duration of the right to assert a rescission claim regardless of when the plaintiff could have or should have discovered any injury. See Hancock v. Homeq Servicing Corp., 2007 WL 1238746, at *12 n.11, 2007 U.S. Dist. LEXIS 31051 at *39 n. 11 (D.D.C. Apr. 27, 2007) (citing Beach v. Ocwen Federal Bank, 523 U.S. 410, 417, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998)), aff'd, 2008 U.S.App. LEXIS 11053" }, { "docid": "8948658", "title": "", "text": "and has considered them in deciding these motions to dismiss. B. TILA Claim As previously noted, Plaintiffs’ Amended Complaint contains seven federal and fifteen state causes of action. The Court will first consider the federal causes of action. In their eleventh cause of action, Plaintiffs claim that all of the Moving Defendants violated TILA, 15 U.S.C. § 1601 et seq., by failing to provide required material disclosures and by making “one or more material changes to the terms of the consumer credit transaction based upon forged signature [sic] and falsified information in the mortgage application and pre-disclosure documents.” (Am. Compl. ¶¶ 392-93.) For these alleged misdeeds, Plaintiffs seek rescission of their mortgages and monetary damages. (Id. ¶ 399.) TILA was enacted by Congress to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit .... ” 15 U.S.C. § 1601(a); see also Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (discussing TILA’s purpose). Accordingly, “TILA requires that creditors provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights, as well as notice of the borrower’s right of rescission.” Fiorenza v. Fremont Inv. & Loan, No. 08-CV-858, 2008 WL 2517139, at *2 (S.D.N.Y. June 20, 2008) (internal quotation marks omitted). Creditors who fail to comply with these disclosure requirements are subject to civil liability. See id. at *3; see also 15 U.S.C. § 1640(a). “Consistent with its purpose, TILA is meant to be construed liberally in favor of the consumer.” Schnall v. Marine Midland Bank, 225 F.3d 263, 267 (2d Cir.2000) (alteration and internal quotation marks omitted). “TILA achieves its remedial goals by a system of strict liability in favor of the consumers when mandated disclosures have not been made.” Smith v. Fid. Consumer Disc. Co., 898 F.2d 896, 898 (3d Cir.1990). Indeed, a “court need find only a single violation of the statutory requirements to hold" } ]

[ { "docid": "22469282", "title": "", "text": "under Rule 54(b). The other rule to be considered in this connection is Rule 56. That Rule covers summary judgment, that is, those situations in which a court can enter a judgment based on the pleadings and affidavits filed which indicate that a party is entitled to a judgment as a matter of law. We have examined subsection (a) of the Rule in the light of subsection (d) of the same Rule and agree with the Second and Seventh Circuits that the Rule “does not contemplate a summary judgment for a portion of a single claim in suit. Neither does any other rule of the Rules of Civil Procedure so contemplate, as far as we are aware. A partial summary judgment, as the instant one is termed, under the circumstances before us is a misnomer.” Biggins v. Oltmer Iron Works, 7 Cir., 1946, 154 F.2d 214, 216; Audi Vision, Inc., v. RCA Mfg. Co., 2 Cir., 1943, 136 F.2d 621, 147 A.L.R. 574. Subsection (d) simply provides for a method whereby the trial judge with the aid of counsel can point up the controverted issues. It is, moreover, similar to the pretrial procedure provided for in Rule 16 and the matters determined in the issues so framed are not foreclosed in the sense that the judge cannot alter his conclusions. The action of interpreting the orders, therefore, did not become final for the purposes of appeal and it did not have the effect of a final judgment. The court retained full power “to make one complete adjudication on all aspects of the case when the proper time arrive [d].” That time was when the judgment in the whole proceeding was entered. Therefore, even if we accept the plaintiff’s contention as to what was determined by the motion, the court was still free to alter its view as to interpretation of the orders at a later stage of the proceedings. Res judicata was not and is not applicable. Upon the question of the interpretation of the orders, we agree with the trial judge that a reading of them shows an intent" } ]

[ { "docid": "18268336", "title": "", "text": "Issues Remaining for Trial The Federal Rules of Civil Procedure do not authorize partial summary judgment for a portion of a single claim. Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3d Cir. 1948), cert. denied 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949); Connelly v. Wolf, Block, Schorr and Solis-Cohen, 463 F.Supp. 914, 919 (E.D.Pa.1978). However, Rule 56(d) empowers a district court to withdraw issues from a case where a genuine issue of fact is absent. Id. at 920; Wright & Miller, Federal Practice and Procedure: Civil § 2737, at 678. In short, a court may enter a partial summary adjudication. In view of our discussion and conclusion of want of access as a matter of law, we hold that at trial plaintiffs may not assert that defendants had access to their copyrighted work. To recover, plaintiffs must prove that the two works are “strikingly similar” so as to preclude the possibility of independent creation. An appropriate order will follow. ON PETITION FOR RECONSIDERATION At the pre-trial conference of June 24, 1980, counsel expressed some confusion concerning the orders of this court dated May 20 and June 9,1980. In order to clarify the plaintiffs’ burden of proof at trial, and our opinion of May 20, 1980, we will further explicate our previous rulings. This is a civil action for injunctive relief and money damages for alleged copyright infringement. Defendants have moved for reconsideration of this court’s order of May 20, 1980, denying their motions for summary judgment. In the alternative, defendants request certification of the issues pursuant to 28 U.S.C. § 1292(b). Both motions will be denied. In their motions for judgment, defendants argue, inter alia, that, since there is an absence of a genuine issue of fact with respect to copying, plaintiffs are unable to establish a prima facie case of infringement. As this court noted in its opinion of May 20, copying may be established by showing: (1) Direct proof of access to the copyrighted work and the two works are “substantially similar,” or (2) The two works are so “strikingly similar” so as to" }, { "docid": "22845460", "title": "", "text": "enter a partial summary judgment as was done in the in stant case? Paragraph (d) plainly answers this question in the negative. It continues: “It (the court) shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” In other words, interpreting paragraph (d) as a whole, it appears plain that a summary judgment is not contemplated or authorized for any portion of a claim less than the whole. When the court is confronted with such a motion as it was in the instant case, it is authorized only to make an “order” as to the non-controverted facts, “including the extent to which the amount of damages or other relief is not in controversy.” This construction of Rule 56 is not novel. Moore in his treatise on the Federal Rules of Civil Procedure (3 Moore’s Federal Practice, 1st Ed. 1938, 3175) states: “Rule 56 (d) imposes a duty upon the court to sift tile issues and to specify which material facts are really in issue and which are not, thereby facilitating and expediting the trial. This pre-trial sifting of the issues upon a motion for summary judgment, as provided in Rule 56 (d), is quite similar to the pre-trial procedure provided in Rule 16, except that under Rule 56(d) it is compulsory, while under Rule 16 it is discretionary with the court.” This court, in the Leonard case, supra 130 F.2d at page 536, approved this interpretation by stating: “The rule is very similar to Rule 16 concerning pretrial procedure for formulation of issues by the court in conference with the parties. In fact, the drafters expressly indicated that the same purpose lay behind both.” In Audi Vision, Inc., et al. v. RCA Mfg. Co., Inc., 2 Cir., 136 F.2d 621, 147 A.L.R. 574, the court similarly compared Rule 56" }, { "docid": "23700347", "title": "", "text": "v. Veterans Administration, 778 F.2d 264, 266-67 (5th Gir.1985). And, obviously, King’s claim against Avondale could not be said to merge into such an order. Nor can it be said that the order itself determines matters which are “a critical and necessary part of” a judgment. See Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 862 (5th Cir.1985). With respect to such interlocutory, partial summary judgments, 6 Part 2 Moore’s Federal Practice 11 56.20[3.-4] states: “Suppose, though, the court makes a summary adjudication. What is its effect? On the entry of a final summary judgment that judgment, which is a judgment on the merits, will have the same effect, including that of res judicata, as any other final judgment. But suppose the court makes -a summary adjudication of a part, but less than all, of a claim. As we have seen this adjudication is interlocutory and while the court should enter an order embodying what it has adjudicated and specifying what issues remain for trial, it should not attempt to enter a final judgment. Since if the trial court enters only an order, as it should do, this order being interlocutory is subject to revision by the trial court and does not have any res judicata effect.” Id. at 56-1228 (footnotes omitted). We have likewise throughout the years on several occasions recognized that such partial summary judgment orders lack the finality necessary for preclusion. See Golman v. Tesoro Drilling Corp., 700 F.2d 249, 253 (5th Cir.1983) (“An order granting partial summary judgment is interlocutory; it has no res judicata or collateral estoppel effect.”); United States v. Horton, 622 F.2d 144, 148 (5th Cir.1980) (“the ruling on the motion for partial summary judgment ... is not immutable and has no res judicata effect”); Travelers Indemnity Company v. Erickson’s, Inc., 396 F.2d 134,135-36 (5th Cir.1968) (an order which “granted a motion for a partial summary judgment” is “an order of the type described in Rule 56(d)” and “[sjuch an order is subject to revision by the trial court and has no res judicata effect”); New Amsterdam Casualty Co. v. B.L. Jones" }, { "docid": "3795983", "title": "", "text": "DISCUSSION As a threshold matter, the Court notes that a genuine dispute of fact regarding plaintiff’s computation of damages precludes summary judgment on that issue. Fed.R.Civ.P. 56(c). Nonetheless, “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” Id. When there is a controversy as to damages, but not as to liability, the procedure to be followed is that specified in Fed.R.Civ.P. 56(d). 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2736, at 447 (1983). Fed.R.Civ.P. 56(d) states that: [i]f on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court____shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy ____ Because this order is a pre-trial adjudication rather than a final order, “the trial court retains jurisdiction to modify the order at any time prior to the entry of a final judgment.” 10A C. Wright, supra, § 2737 at 463-4; see Dyal v. Union Bag-Camp Paper Corp., 263 F.2d 387, 395 (5th Cir. 1959). The right of either party to a jury trial on those issues that remain in dispute will not be affected. See 10A C. Wright, supra, § 2736 at 452. The District Court is empowered to specify in the pre-trial order any amount of damages which is not in controversy. 10A C. Wright, supra, § 2737, at 454-5; see Sloane v. Land, 16 F.R.D. 242 (S.D.N.Y. 1954); McDonald v. Batopilas Mining Co., 8 F.R.D. 226 (E.D.N.Y.1948). The court may also grant partial summary judgment on an affirmative defense that poses no genuine issue of fact. See First National City Bank v. Kline, 439 F.Supp. 726, 728 (S.D.N.Y.1977); see 10A C. Wright, supra, § 2737 at 462. A. Forum-Selection Clauses Forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be" }, { "docid": "14029573", "title": "", "text": "reject defendants’ application on another procedural ground. Fed.R.Civ.P. 56(d) contemplates that a court faced with a summary judgment motion may conclude that full case-dispositive relief cannot be granted. In that circumstance it directs that the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall therefore make an order specifying the facts that appear -without substantial controversy ... and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The evident purpose of this rule is to “speed[] up litigation by eliminating before trial matters wherein there is no genuine issue of fact.” Fed.R.Civ.P. 56(d), Advisory Committee Notes (1946). This is precisely the procedure followed by this court when it granted partial summary judgment before trial. If, however, a party could, in effect, ignore such a ruling and, after trial, sift the trial record for evidence that might have supported its position on issues decided before trial — as defendants seek to do here — the salutary purpose of the rule, to narrow the trial and define in advance the issues to be addressed there, would be defeated. It is certainly true, as defendants argue, that a court may reexamine its Rule 56(d) rulings if sufficient cause is shown. See, e.g., 6 Pt. 2 J. Moore et ano., Moore’s Federal Practice ¶ 56.20[3.-3] at 56-701 & n. 10 (2d Ed.1993) (citing cases); id. ¶ 56.20[3-4] at 56-704 to 05 (citing Coffman v. Federal Laboratories, 171 F.2d 94, 98 (3d Cir.1948), cert. denied, 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949)). See generally Fed. R.Civ.P. 54(b). Such a revision by the court must, however, be shown to be justified, see, e.g., Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir.1943) (change permitted at trial “to prevent manifest injustice”); Moore’s Federal Practice, supra, at 56-707 (court should not alter ruling absent “good cause”), and it must be done on" }, { "docid": "4294004", "title": "", "text": "in Hochgertel. But at this time the Pennsylvania rule is clear and I must, of course, act on it, however one may speculate on its future development. Defendant’s motion, however, encounters a procedural barrier. The Federal Rules of Civil Procedure do not provide for a “partial summary judgment” under Rule 56. *****Since the elimination of the warranty count will not completely dispose of the case, the appropriate remedy is provided by subsection (d) of Rule 56, which authorizes an order limiting the issues to be tried, by analogy to Rule 16 relating to pretrial orders. Professor Moore recommends that this should be called an “interlocutory summary adjudication”. 6 Moore, Federal Practice (1953), § 56.20 [3]. Such an adjudication preliminary to the trial is not a final judgment, and has the virtue that if subsequent developments in this changing area of Pennsylvania law make it appropriate, the conclusion here reached may be reconsidered at the pretrial conference or at the trial. ORDER And now, May 18, 1964, count II of the complaint is declared insufficient as a matter of law and the issue of liability for warranty under count II is eliminated from the case. . Coffman v. Federal Laboratories, 171 F.2d 94 (3d Cir. 1948), cert. den. 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949); Daniels v. Beryllium Corp., 211 F.Supp. 452, 456 (E.D.Pa.1962); 6 Moore, Federal Practice (1953), § 56.20. . See Coffman v. Federal Laboratories, supra, n. 1; Daniels v. Beryllium Corp., supra, n. 1." }, { "docid": "14029574", "title": "", "text": "have supported its position on issues decided before trial — as defendants seek to do here — the salutary purpose of the rule, to narrow the trial and define in advance the issues to be addressed there, would be defeated. It is certainly true, as defendants argue, that a court may reexamine its Rule 56(d) rulings if sufficient cause is shown. See, e.g., 6 Pt. 2 J. Moore et ano., Moore’s Federal Practice ¶ 56.20[3.-3] at 56-701 & n. 10 (2d Ed.1993) (citing cases); id. ¶ 56.20[3-4] at 56-704 to 05 (citing Coffman v. Federal Laboratories, 171 F.2d 94, 98 (3d Cir.1948), cert. denied, 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949)). See generally Fed. R.Civ.P. 54(b). Such a revision by the court must, however, be shown to be justified, see, e.g., Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir.1943) (change permitted at trial “to prevent manifest injustice”); Moore’s Federal Practice, supra, at 56-707 (court should not alter ruling absent “good cause”), and it must be done on notice to the other parties, so that they understand that additional issues will be open for adjudication at trial and may prepare accordingly. As the Second Circuit has noted: Once a district judge issues a partial summary judgment order removing certain claims from a ease, the parties have a right to rely on the ruling by forebearing from introducing any evidence or cross-examining witnesses in regard to those claims. If, as allowed by Rule 54(b), the judge subsequently changes the initial ruling and broadens the scope of the trial, the judge must inform the parties and give them an opportunity to present evidence relating to the newly revived issue. Leddy v. Standard Drywall, Inc., 875 F.2d 383, 386 (2d Cir.1989). Defendants’ effort to obtain judgment at this stage fails all of these tests. It does not seek to add an issue for trial, but rather seeks dispositive relief, and yet it does so in reliance on evidence that defendants offered at a trial that was expressly not conducted on the issue for which defendants now" }, { "docid": "23700346", "title": "", "text": "vice owner for purposes of King’s section 905(b) action against Avondale, was not a final judgment for purposes of either true res judicata or collateral estoppel. As we said in International Union of Operating Engineers v. Sullivan Transfer, Inc., 650 F.2d 669, 676 (5th Cir.1981), “[t]he requirement of finality applies just as strongly to collateral estoppel as it does to res judicata.” See also, e.g., White v. World Finance of Meridian, Inc., 653 F.2d 147, 149-52 (5th Cir.1981) (reciting “final judgment” requirement for both claim and issue preclusion). This partial summary judgment order did not even determine Avondale’s liability — there being no determination either of fault on its part or of causation — much less King’s damages, and hence was interlocutory and not appeal-able. Cf. Fed.R.Civ.P. 56(c) (summary judgment on liability alone “interlocutory in character”). Not only is such an order not appealable, but it remains within the plenary power of the district court to revise or set aside in its sound discretion without any necessity to meet the requirements of Fed.R.Civ.P. 60(b). Zimzores v. Veterans Administration, 778 F.2d 264, 266-67 (5th Gir.1985). And, obviously, King’s claim against Avondale could not be said to merge into such an order. Nor can it be said that the order itself determines matters which are “a critical and necessary part of” a judgment. See Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 862 (5th Cir.1985). With respect to such interlocutory, partial summary judgments, 6 Part 2 Moore’s Federal Practice 11 56.20[3.-4] states: “Suppose, though, the court makes a summary adjudication. What is its effect? On the entry of a final summary judgment that judgment, which is a judgment on the merits, will have the same effect, including that of res judicata, as any other final judgment. But suppose the court makes -a summary adjudication of a part, but less than all, of a claim. As we have seen this adjudication is interlocutory and while the court should enter an order embodying what it has adjudicated and specifying what issues remain for trial, it should not attempt to enter a final judgment." }, { "docid": "19175293", "title": "", "text": "of less than an entire claim. Under Rule 56(c), “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.” See generally 6 Pt. 2 J. Moore, supra, at 11 56.20[3.-2]; 10A C. Wright & A. Miller & M. Kane, supra, at § 2736. Rule 56(d) provides: If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The two subprovisions overlap to some extent. For example, a determination on liability may be made pursuant to Rule 56(d). 10A C. Wright & A. Miller & M. Kane, supra, at § 2736, p. 447. B. Motion Under Rule 56(d) An adjudication under Rule 56(d) is clearly interlocutory and in the nature of a pretrial order. Biggins, 154 F.2d at 217; 10A C. Wright & A. Miller & M. Kane, supra, at § 2737, p. 459; 6 Pt. 2 J. Moore, supra, at ¶ 56.20[3.-2], pp. 56-1215 to 56-1217. Hence, such adjudications are clearly not “judgments,” although authorized by a rule encaptioned “Summary Judgment.” Thus, while Capitol is not entitled to summary judgment, it may under some circumstances be entitled to an order that narrows the triable issues in the case. The next question raised is whether Capitol’s present motion for “partial summary judgment” entitles it to an adjudication under Rule 56(d). (The court does not decide" }, { "docid": "19175297", "title": "", "text": "to hold otherwise, Rule 56(d) could be used to justify numerous and repetitive motions seeking to resolve limited factual issues in a piecemeal fashion. Such adjudications would not dispose of a claim or even become final until trial, and would waste judicial resources in almost every case. Parties in effect could force the court to make the type of determinations that are properly made by the court in its discretion under Rule 16. A fair reading of Rule 56(d), then, is that it does not allow a party to bring a motion for a mere factual adjudication. Rather, it allows a court, on a proper motion for summary judgment, to frame and narrow the triable issues if the court finds that such an order would be helpful to the progress of the litigation. Capitol argues that Progress Record has resisted settlement of this action, and that a partial adjudication would goad the parties to settle. Where the finding requested would not result in an enforceable judgment, the court is not convinced that settlement would be appreciably advanced thereby. Such an adjudication would simply recognize what both parties already know, that the non-movant will not be able to controvert certain facts at trial. Assuming that settlement will be advanced in the present case, however, the court finds that the policy reasons behind denying a Rule 56(d) adjudication to a movant who does not move for “true” summary judgment outweigh the settlement effect of the finding Capitol now seeks. C. Motion Under Rule 56(c) Unlike Rule 56(d), which provides for an “order” specifying undisputed facts after denial of judgment, Rule 56(c) provides for “summary judgment, interlocutory in character.” The court interprets this language as allowing the filing of a motion for summary judgment only on the issue of liability as to at least a single claim or party. The usefulness of this procedure may be seen, for example, in the case where the calculation of damages is a ministerial matter, and indeed, appeal from a finding of liability is allowed under some circumstances. See Parks v. Pavkovic, 753 F.2d at 1401-02. Capitol" }, { "docid": "19175292", "title": "", "text": "p. 457 n. 7 (1983 & Supp.1984), the plaintiff sought compensation for services rendered. The district court entered “partial summary judgment” as to amounts owed that were uncontested. In a thorough and well-reasoned opinion, the Seventh Circuit found that under the Federal Rules, a judgment, as opposed to an interlocutory adjudication, may not be entered on “a portion of a single claim in suit.” 154 F.2d at 216. See Triangle Ink & Color Co., Inc. v. SherwinWilliams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974) (factual discussion reveals that movant desired not only a Rule 56(d) adjudication but a final judgment as to the undisputed damages under a single claim); 6 Pt. 2 J. Moore, Moore’s Federal Practice U 56.20[3.-2] & [3.-3], pp. 56-1219 & 56-1225 (1982 & Supp.1984-85). Hence, it is clear that Capitol is not entitled to summary judgment on this motion. Framing the motion as one for partial summary judgment does not cure the fatal defect of moving for judgment on a portion of a claim. Two provisions of Rule 56 discuss the disposition of less than an entire claim. Under Rule 56(c), “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.” See generally 6 Pt. 2 J. Moore, supra, at 11 56.20[3.-2]; 10A C. Wright & A. Miller & M. Kane, supra, at § 2736. Rule 56(d) provides: If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial" }, { "docid": "1497537", "title": "", "text": "GODBOLD, Circuit Judge: This is a case in which the trial court improperly granted a motion for a partial summary judgment and the appel lant improvidently appealed therefrom. The appeal must be dismissed since we are without jurisdiction. New Amsterdam Casualty Co. v. B. L. Jones & Company, 254 F.2d 917 (5th Cir. 1958); King v. California Company, 5 Cir., 224 F.2d 193 (1955), opinion on rehearing, 236 F.2d 413 (5th Cir. 1956). The record discloses an order of the district court granting what plaintiff styled as a motion for summary judgment, with the body thereof being directed to what plaintiff characterized as a part of a claim, and an appeal by the defendant from that order. An interlocutory order is not made appealable merely by characterizing it as having been made under Fed.R.Civ.Proc. 56. See discussion at 6 Moore, Federal Practice, § 56.20 [3.-1]. The order here is not a final judgment under 28 U.S.C.A. § 1291. It is not an appealable interlocutory order under 28 U.S.C.A. § 1292(a). Nor is it an instance of an affirmative judgment for the plaintiff with an award of execution, made in excess of the authority of the district court. See Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir. 1946); 6 Moore, supra, § 56.20 [3.-1]. Also the parties are in sharp dispute over whether the subject matter of the suit is one claim or multiple claims, a matter which appears to us cannot be determined on the present record. Even if the claims are multiple there has been no express determination that there is no just reason for delay and no express direction for the entry of judgment as required by Rule 54(b) to give finality to an order on one of several claims. See New Amsterdam, supra. The order sought to be appealed from is in its effect an order of the type described in Rule 56(d), specifying facts established without controversy, analogous to a pre-trial order under Rule 16. Such an order is subject to revision by the trial court and has no res judicata effect. New Amsterdam," }, { "docid": "23656989", "title": "", "text": "further contest on phases of litigation or issues already well settled, the saving to litigants the costs incident to relitigation of such matters, and to the courts the time unnecessarily consumed therein.” 6A Moore’s 1159.06 n. 36. (Citations omitted). Accordingly, we limit retrial to the issue of Farrell’s liability under the Jones Act for Lies’ injuries resulting from the Texaco New Jersey accident. Affirmed in part; reversed and remanded in part. . The preventor guy was a braided steel wire rope one and one-half inch thick and about fifty-six feet long. It was attached to a cargo boom at the top, and at the bottom to the bulwark at the side of the ship. Its function is to prevent excess swinging of the boom. . Slushing is a routine procedure of applying a coating of tallow and whitlead mixture to wire ropes known as stays which steady and support the vessel’s mast and king posts. . In discussing Rule 56(d) Professor Moore states that, “It is clear that Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim; that the term ‘partial summary judgment’ as applied to an interlocutory summary adjudication is often a misnomer.” With respect to the purpose of Rule 56(d), Professor Moore quotes the following statement in Luria Steel & Trading Corp. v. Ford, 9 F.R.D. 479, 481 (D.Neb. 1949): The partial summary judgment is merely a determination before the trial that certain issues shall be deemed established in advance of the trial. The procedure was intended to avoid a useless trial of facts and issues over which there was really never any controversy and which would tend to confuse and complicate a lawsuit. 6 Moore’s Federal Practice [hereinafter Moore’s] •' 56.20[3.-2] (2d ed. 1976). . Despite the absence of a formal order, as required by Rule 56(d), see 6 Moore's 56.-20[3 3], we deem partial summary judgment to have been granted for purposes of this appeal. . Ammar v. American Export Lines, Inc., 326 F.2d 955 (2 Cir. 1964), discussed infra. . Although the court excluded" }, { "docid": "19175291", "title": "", "text": "a single claim or of all claims against a single party. Fed.R.Civ.P. 54(b). Additionally, under some circumstances, an appeal may be taken of a finding of liability where the computation of damages is “mechanical and uncontroversial.” Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir. 1985). To hold that judgment could be entered and an appeal taken on part of a claim would result in bifurcated proceedings that could only delay unnecessarily the progress of the litigation. In addition, Rule 56(d) implicitly establishes that summary judgment is available only for an entire claim at a minimum. That provision, as will be discussed below, allows the court to enter interlocutory orders setting forth facts that will be deemed established and uncontested at trial. The propriety of summary judgment on a portion of a claim was decided by the Seventh Circuit in a case not cited by either party. In Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946), cited in 10A C. Wright & A. Miller & M. Kane, Federal Practice and Procedure § 2737, p. 457 n. 7 (1983 & Supp.1984), the plaintiff sought compensation for services rendered. The district court entered “partial summary judgment” as to amounts owed that were uncontested. In a thorough and well-reasoned opinion, the Seventh Circuit found that under the Federal Rules, a judgment, as opposed to an interlocutory adjudication, may not be entered on “a portion of a single claim in suit.” 154 F.2d at 216. See Triangle Ink & Color Co., Inc. v. SherwinWilliams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974) (factual discussion reveals that movant desired not only a Rule 56(d) adjudication but a final judgment as to the undisputed damages under a single claim); 6 Pt. 2 J. Moore, Moore’s Federal Practice U 56.20[3.-2] & [3.-3], pp. 56-1219 & 56-1225 (1982 & Supp.1984-85). Hence, it is clear that Capitol is not entitled to summary judgment on this motion. Framing the motion as one for partial summary judgment does not cure the fatal defect of moving for judgment on a portion of a claim. Two provisions of Rule 56 discuss the disposition" }, { "docid": "2239778", "title": "", "text": "release of all claims of Debtor, Raymond J. McCormick Jr. (“McCormick”) and R.J. McCormick III and MCP against each other arising prior to that date. Exhibit C to Motion. MCP’s position that its Pre-1999 Conduct is not proper evidence in this case, if sustained, would narrow the factual issues for trial considerably. Accordingly, I directed MCP to file a motion that would put that question before the Court for resolution prior to trial. MCP filed the instant Motion. Debtor and McCormick (the “Defendants”), filing a joint submission, contend that the Motion is procedurally defective in seeking partial summary judgment when the claim to which the Motion relates, ie., Count 7 of the Counterclaim, will only be resolved in part by this Motion. The Defendants are correct that the Motion is one authorized by Fed.R.Civ.P. 56(d) (case not fully adjudicated on the motion) and as such, any order entered “in a strict sense is not a judgment at all.” Cohen v. Board of Trustees of the University of Medicine and Dentistry of New Jersey, 867 F.2d 1455, 1463 (3d Cir.1989). Quoting from a leading commentator, the Cohen Court noted: The procedure prescribed in subdivision (d) is designed to be ancillary to a motion for summary judgment. However, unlike the last sentence in Rule 56(c), which provides an interlocutory judgment on a question of liability, Rule 56(d) does not authorize the entry of a judgment on part of a claim or the granting of partial relief. It simply empowers the court to withdraw some issues from the case and to specify those facts that really cannot be controverted.... Inasmuch as it narrows the scope of the trial, an order under Rule 56(d) has been compared to a pretrial order under Rule 16. Id. (quoting 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2737, 316-318 (1998)). Thus, the Motion was fashioned to accomplish what I intended when I directed MCP to file it. DISCUSSION The Defendants state that the discovery being resisted is relevant to Count 7 of their Counterclaim. It reads as follows: 54." }, { "docid": "19175294", "title": "", "text": "of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The two subprovisions overlap to some extent. For example, a determination on liability may be made pursuant to Rule 56(d). 10A C. Wright & A. Miller & M. Kane, supra, at § 2736, p. 447. B. Motion Under Rule 56(d) An adjudication under Rule 56(d) is clearly interlocutory and in the nature of a pretrial order. Biggins, 154 F.2d at 217; 10A C. Wright & A. Miller & M. Kane, supra, at § 2737, p. 459; 6 Pt. 2 J. Moore, supra, at ¶ 56.20[3.-2], pp. 56-1215 to 56-1217. Hence, such adjudications are clearly not “judgments,” although authorized by a rule encaptioned “Summary Judgment.” Thus, while Capitol is not entitled to summary judgment, it may under some circumstances be entitled to an order that narrows the triable issues in the case. The next question raised is whether Capitol’s present motion for “partial summary judgment” entitles it to an adjudication under Rule 56(d). (The court does not decide whether Capitol could have framed its pleadings or this motion in such a way as to allow it to move for judgment as to a single claim or party.) The Biggins Court implied that a motion could be brought originally under Rule 56(d), explaining that “[w]hen the court is confronted with such a motion [for partial summary judgment on a portion of a claim], it is authorized only to make an ‘order’ as to the non-contro verted facts____” 154 F.2d at 217. However, other authorities directly confronted with the issue reach the opposite conclusion. First, the language of Rule 56(d), by referring to failure to achieve judgment “on a motion under this rule,” implies that Rule 56(d) itself does not authorize the filing of a motion for a partial adjudication. One court in this district has interpreted Rule 56(d) as applying only where a party has moved unsuccessfully under Rule 56(a) and (c). SFM Corp. v. Sundstrand Corp., 102 F.R.D. 555, 558-59 (N.D.Ill.1984); Oberweis Dairy v. Associated Milk Producers, Inc., 553 F.Supp. 962, 970-71 &" }, { "docid": "4960245", "title": "", "text": "papers with the trial court in the American East India case after it was admittedly aware of the assignments, we believe that it is not possible to hold as a matter of law that an attorney-client relationship could not be implied. This conclusion is reinforced by Connelly’s averments of fee demands, Connelly supplemental affidavit at 6, and by his averments that Wolf, Block was aware of the assignments, Connelly affidavit at 2-3, and that it performed legal services with knowledge of the assignments, Connelly supplemental affidavit at 10. The existence of an attorney-client relationship, or some other basis of establishing a duty of Wolf, Block’s part, is clearly a material fact in this case. Drawing all inferences in plaintiff’s favor, as we are required to do in ruling on this motion, we cannot say that Wolf, Block has met its burden of establishing that there is no genuine issue as to that fact. Defendant’s motion for summary judgment therefore will not be granted. Issues Remaining for Trial The Federal Rules of Civil Procedure do not provide for partial summary judgment for a portion of a single claim. Coffman v.. Federal Laboratories, Inc., 171 F.2d 94 (3d Cir. 1948), cert. denied, 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949); Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir. 1946). Nonetheless, Rule 56(d) imposes a duty on a court that does not fully adjudicate a case on a motion for summary judgment to make an order formulating the issues for trial, to the extent practicable. Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F.2d 114 (3d Cir. 1965); 6 Moore’s Federal Practice ¶ 56.20[3.-3] (2d ed. 1976). In view of our discussion of collateral estoppel, supra, we therefore hold that at trial plaintiff may not assert that the October, 1974 assignments assigned to him malpractice claims for any malpractice occurring before the assignments. To recover, plaintiff must show a duty owed to him and malpractice occurring after the assignments. Pursuant to Local Rule of Civil Procedure 49, this case shall be referred to arbitration. The issues involved" }, { "docid": "23656990", "title": "", "text": "will often fall short of a final determination, even of a single claim; that the term ‘partial summary judgment’ as applied to an interlocutory summary adjudication is often a misnomer.” With respect to the purpose of Rule 56(d), Professor Moore quotes the following statement in Luria Steel & Trading Corp. v. Ford, 9 F.R.D. 479, 481 (D.Neb. 1949): The partial summary judgment is merely a determination before the trial that certain issues shall be deemed established in advance of the trial. The procedure was intended to avoid a useless trial of facts and issues over which there was really never any controversy and which would tend to confuse and complicate a lawsuit. 6 Moore’s Federal Practice [hereinafter Moore’s] •' 56.20[3.-2] (2d ed. 1976). . Despite the absence of a formal order, as required by Rule 56(d), see 6 Moore's 56.-20[3 3], we deem partial summary judgment to have been granted for purposes of this appeal. . Ammar v. American Export Lines, Inc., 326 F.2d 955 (2 Cir. 1964), discussed infra. . Although the court excluded any discussion of the accident aboard the S.S. Texaco New Jersey, the jury was apprised of the incident. During closing argument counsel for Farrell Lines used the incident to argue that Lies’ left hand must not have been weak, because otherwise he would not have undertaken the slushing job. There was apparently no attempt, however, by the plaintiff to establish liability on Farrell Lines for this accident. . For a good example of instructions distinguishing between proximate cause under the maritime law of unseaworthiness and causa tion under the Jones Act, see Litherland v. Petrolane Offshore Construction Services, Inc., 546 F.2d 129, 131-33 (5 Cir. 1977). Ironically, the instructions given by the court at the conclusion of the trial on the remaining issues in the present case make the same distinction. As discussed below, the court did not, however, follow the appropriate law of causation under the Jones Act in ruling on the motion for summary judgment. . Each device is one of four opportunities contemplated by the Rules of Civil Procedure for a judge" }, { "docid": "4294003", "title": "", "text": "FREEDMAN, District Judge. This is a Pennsylvania diversity suit for personal injury. The complaint contains two counts against the defendant, F. A. Mitchell Co. One count alleges negligence; the other alleges breach of warranty. Defendant, Mitchell Co., has filed a motion for summary judgment under Rule 56 on the warranty count, claiming the absence of privity between plaintiff’s decedent and the defendant. Despite the arguments of plaintiff’s counsel to the contrary, the conclusion is inescapable that under Pennsylvania law defendant’s warranty did not extend to plaintiff’s decedent, who was an employee of the buyer. The governing rule was recently announced in Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963). In the more recent ease of Yentzer v. Taylor Wine Co., 414 Pa., 272, 199 A.2d 463 (1964), the Hochgertel case was formally reaffirmed but was held inapplicable to an employee who personally made the purchase for his employer and therefore was treated as a buyer of the defective goods. The Yentzer case foreshadows perhaps the ultimate decay of the limitation recognized in Hochgertel. But at this time the Pennsylvania rule is clear and I must, of course, act on it, however one may speculate on its future development. Defendant’s motion, however, encounters a procedural barrier. The Federal Rules of Civil Procedure do not provide for a “partial summary judgment” under Rule 56. *****Since the elimination of the warranty count will not completely dispose of the case, the appropriate remedy is provided by subsection (d) of Rule 56, which authorizes an order limiting the issues to be tried, by analogy to Rule 16 relating to pretrial orders. Professor Moore recommends that this should be called an “interlocutory summary adjudication”. 6 Moore, Federal Practice (1953), § 56.20 [3]. Such an adjudication preliminary to the trial is not a final judgment, and has the virtue that if subsequent developments in this changing area of Pennsylvania law make it appropriate, the conclusion here reached may be reconsidered at the pretrial conference or at the trial. ORDER And now, May 18, 1964, count II of the complaint is declared insufficient as" }, { "docid": "22996736", "title": "", "text": "a year later, before trial, the trial court reversed itself and entered summary judgment in favor of defendants. This time it held that Oklahoma statutory law did not impose any duty to formulate safeguards, that the cause of action sounds in tort and not in any violation of a right protected by the United States Constitution, and that no section 1983 claim was supported because only an isolated failure to act had been shown. This second opinion did not reverse any prior findings of facts, but instead merely drew different conclusions of law. Plaintiffs complain of the failure of the district court to give a detailed explanation for its reversal on the issue of liability; but the legal question at issue is whether the second order impermissibly changed the law of the case. The original determination of liability was an order interlocutory in nature, as our denial of the petition for interlocutory appeal attests. Id. See Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3d Cir. 1948), cert. denied, 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949); 6 Moore’s Federal Practice 156.20[3.-4] at 56-1228-29 (2d ed. 1948). When a court enunciates a rule of law in the course of a given case, the law of the case doctrine generally requires the court to adhere to the rule throughout the proceedings. IB Moore’s Federal Practice 10.404[1] at 402-03. The rule is one of expedition, designed to bring about a quick resolution of disputes by preventing continued reargument of issues already decided. Roberts v. Cooper, 61 U.S. (20 How.) 467, 481, 15 L.Ed. 969 (1858); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967). Unlike res judicata, the rule is not an “inexorable command,” but is to be applied with good sense. White v. Murtha, 377 F.2d at 431-32; see Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 426 F.2d 619 (2d Cir. 1970), cert. denied, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972). When a lower court is convinced that an interlocutory ruling it has made is substantially erroneous, the only sensible thing to do" } ]

[ { "docid": "2634269", "title": "", "text": "the statutory language is clear and unambiguous. Debtor had a bankruptcy case in which a Motion for Relief from Stay was filed, disposed of and concluded (i.e., it was no longer pending), she moved to voluntarily dismiss that case after and/or following the filing of a motion for relief from stay and she filed the current bankruptcy petition within 180 days after that previous case was voluntarily dismissed. Thus, the facts of this matter fit within the purview of § 109(g)(2) and if applied as written the statute prescribes dismissal of this case. However, this mechanical application of § 109(g)(2) in every situation has been described as undesirable. This Court must now analyze whether this strict, mechanical application leads to an absurd result. B. Strict application of § 109(g)(2). This Court is concerned that several different scenarios could occur which could result in and absurd result and/or a result contrary to Congress’ intention. For example, mandatory application in every case would penalize debtors even when the Motion for Relief from Stay is resolved in the debtor’s favor. There is also the possibility of potential abuse of § 109(g)(2) by creditors because at least one motion for relief from stay is filed in almost every Chapter 13 bankruptcy case. Thus, a debtor’s motion for voluntary dismissal after the filing of that motion, even if one to two years later, would invoke § 109(g)(2) in most cases. It is unlikely that Congress would permit abuse by creditors who could file a motion for relief from stay, whether frivolous or not, in every case. Then, once any debtor seeks to voluntarily dismiss his or her case for any reason, any creditor, whether the same or different creditor and whether successful or not on the merits of the motion for relief from stay, could then file a motion to dismiss in the subsequent case pursuant to § 109(g)(2) assured of success. Surely Congress did not seek to favor or encourage this creditor abuse over any perceived threat of debtor abuse. Moreover, if a debtor has had a relief from stay motion filed in her" } ]

[ { "docid": "14136428", "title": "", "text": "§ 109(g)(2) should not be applicable if the debtor ... successfully defended against ... the motion for relief from the stay.” 2 Collier, supra, § 109.08 at 109-54. This approach reconciles the purpose of [§ ] 109(g)(2) with its language, without adding an exception for the court’s discretion, and without adding a condition that there be a causal connection or that the motion be pending. It [produces a result] ... that is both equitable and consistent with the intent of Congress. Waxman, Judicial Follies, supra, at 170. Applying the above approach, I conclude that in the present case, the bankruptcy court properly denied the Trustee’s motion to dismiss. This is so because the debtor successfully defended against Wells Fargo’s request for relief from the stay. More specifically, after the bankruptcy court granted the request based on Wells Fargo’s having mistakenly asserted that the Beals did not object to it, the court vacated the grant with Wells Fargo’s agreement. In essence, Wells Fargo withdrew its request for relief from the stay. Therefore, the order of the bankruptcy court denying the Trustee’s motion to dismiss is affirmed. III. CONCLUSION For the reasons stated, IT IS ORDERED that the Trustee’s motion for leave to appeal is GRANTED. IT IS FURTHER ORDERED that the decision of the bankruptcy court is AFFIRMED and this case is REMANDED to the bankruptcy court for further proceedings consistent with this decision. . Section 362(a)(1) stays any \"action or proceeding against the debtor.” The stay remains in effect until the bankruptcy court disposes of the case or grants relief from the stay. In r& Williams, 144 F.3d 544, 546 (7th Cir.1998). . Section 362(d) provides: ”[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay.” . Courts have employed two other approaches to § 109(g)(2). One approach reads the statute as precluding refiling only when there is a \"causal connection between the creditor's motion for relief from stay and the debtor’s subsequent motion for and obtaining of a voluntary dismissal.” Waxman, Judicial Follies, supra, at 158; see also" }, { "docid": "9889683", "title": "", "text": "the debtor’s bankruptcy cases appropriately prevents debtor abuse and allows creditors to pursue state court remedies. See In re Nelkovski, 46 B.R. 542, 544 (Bankr.N.D.Ill.1985) (noting that- “Congress intended to formulate a so-called bright line rule which would preclude certain debtors from refiling within 180 days.”); see also, 5 Collier On Bankruptcy ¶ 1300.12[10] at 1300-49 (15th ed.1987) (“[s]ince the purpose of this provision was to prevent the abusive filing of new petitions close on j;he heels of legitimate requests for relief from the automatic stay, the language prohibiting a new case ‘following’ a request for relief from the stay probably implies causal relationship between the two.”). The .second approach holds that the term “following” means “as a result of’ and. requires a judicial determination of a causal relationship .between two of the actions referenced in section 109(g)(2). See, e.g., In re Payton, 481 B.R. 460, 461 (Bankr.N.D.Ill.2012); In re Duncan, 182 B.R. 156 (Bankr.W.D.Va.1995); In re Copman, 161 B.R. 821 (Bankr.E.D.Mo.1993). Under the causal approach, if a debtor requests and obtains a voluntary disrnissal of her case after a party moves for relief from stay, that person is ineligible for bankruptcy relief for 180 days only if the court determines she requested and obtained the voluntary dismissal because of the party’s motion. for relief from stay. The third- approach endorses the sequential interpretation of “following,” but would limit application of section 109(g)(2) to those cases where the voluntary dismissal and refiling constitute an abuse of the bankruptcy process. Courts adopting the discretionary approach have identified several exceptions to the 180-day prohibition: (1) if the person acts in good faith in refiling, after she has requested and obtained' a voluntary dismissal of her' prior case subsequent to the filing of a motion for relief from stay, In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); (2) if the person shows that no prejudice will occur to the party who moved for relief in the previous case, In re Howard, 311 B.R. 230, 232 (Bankr.E.D.Wis.2004); or (3) if the motion for relief from stay was withdrawn, dismissed, or denied," }, { "docid": "14136418", "title": "", "text": "proceedings.” Id. (quoting In re Holder, 151 B.R. 725, 727 (Bankr.D.Md.1993) (internal quotation marks omitted)). The statute gives secured creditors a 180 day window to pursue state law remedies free of the automatic stay. See Holder, 151 B.R. at 727; see also In re Ulmer, 19 F.3d 234, 235 (5th Cir.1994) (stating that without § 109(g)(2), “a debtor could move in and out of bankruptcy, forcing a creditor to pursue time and again the right to collect a debt”); Matter of Patton, 49 B.R. 587, 589 (Bankr. M.D.Ga.1985) (stating that § 109(g)(2) “is intended to address the situation in which ... [t]he debtor [attempts to] ... continually frustrate the creditor’s attempts to foreclose.”); William L. Norton Jr. & William L. Norton III, Norton Bankruptcy Law & Practice 2d § 115.7 (2006) (stating that “[s]ection 109(g)(2) was enacted to defeat the practice observed in some jurisdictions of multiple refilings in an effort to overcome the grant of relief from the stay in a prior case”). However, when it drafted § 109(g)(2), Congress used overly inclusive language such that the statute applies in situations that are unrelated to its purpose. See Waxman, Judicial Follies, supra, at 154 (stating that “the literal language of the statute operates more inclusively than Congress intended”) (citations omitted); see also Alan N. Resnick, et. al., 2 Collier on Bankruptcy § 109.08, at 109-54 (15th ed. rev.2005) (stating that in light of its purpose, § 109(g)(2) should not apply “if the debtor successfully defended against or resolved the motion for relief from the stay or paid in full the creditor who moved for relief’ or if the first case is remote in time from the motion for stay relief); In re Hutchins, 303 B.R. 503 (Bankr.N.D.Ala. 2003) (declining to apply statute where application would create an absurd result); In re Luna, 122 B.R. 575, 576 (Bankr.9th Cir.1991) (declining to apply the statute where it punished the debtor “for acting in good faith”). Read literally, § 109(g)(2) requires a debtor to wait 180 days to file a bankruptcy petition after a creditor has requested relief even if the creditor" }, { "docid": "17225766", "title": "", "text": "in only a limited number of cases rather than effectuate the statute across the board. See, e.g., In re Santana, 110 B.R. 819 (Bankr.W.D.Mich.1990). In Luna, a creditor in her first case, Home Savings, requested and obtained relief from the automatic stay in order to sell previously foreclosed property. The debt- or then filed a voluntary motion for dismissal and the judge granted her motion. Within 180 days of her voluntary dismissal, the debtor filed a second bankruptcy that should have prevented Home Savings from proceeding with the sale of the previously foreclosed property. Despite its knowledge of the second petition, however, Home Savings sold Luna’s property three weeks after the second filing date. The court held that it would adopt a discretionary approach to § 109(g)(2) because to do otherwise “would reward Home Savings for acting in bad faith [by wilfully violating the automatic stay in the second case] and punish Luna for acting in good faith [by seeking to have the bankruptcy court resolve a dispute over possible redemption of the mortgaged property].” Luna, 122 B.R. at 577. In Santana, on similar facts, the court concluded that the language of § 109(g)(2) was unambiguous, and that, if applied as written, the statute dictated dismissal. However, the court went on to state that “to apply it literally to the facts now before me would produce, if not an absurd result, then certainly one which goes far beyond the scope of the abuse which it appears Congress was attempting to cure.” Santana, 110 B.R. at 821. Consequently, the court declined to apply the statute as written, and denied the creditor’s motion to dismiss. Clearly bad facts make for bad law. In both instances, the Luna and Santana courts reached beyond their judicial roles to achieve a desired result. Neither Section 109(g)(2), while subject to various legitimate interpretations, nor the Bankruptcy Code provide for such extraordinary judicial discretion and interpretation. The Luna and Santana courts had other means with which to punish creditors for willful violations of the automatic stay. Both courts utilized Section 109(g)(2) to remedy a perceived wrong. 2." }, { "docid": "14136427", "title": "", "text": "(1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). Thus, § 109(g)(2) presents a dilemma. Its unambiguous language does not authorize judges to exercise discretion as to when to apply it. Yet, it is overly inclusive and if applied in some situations, causes a result that is at odds with Congress’s intention. I conclude that § 109(g)(2)’s plain language can be reconciled with Congress’s intent by applying the statute in all fact situations that fall within its terms (thereby recognizing its mandatory character) except for certain limited and clearly defined circumstances where it undeniably produces a result not intended by Congress. These circumstances are when the motion for relief from the stay has been withdrawn, dismissed or denied. “Congress could not possibly have intended to penalize the debtor for a creditor’s motion that was filed in error or that lacks merit, and subsequent dismissal and refiling surely would not be abusive.” Waxman, Judicial Follies, supra, at 164. Collier agrees, stating that “in light of its purpose, § 109(g)(2) should not be applicable if the debtor ... successfully defended against ... the motion for relief from the stay.” 2 Collier, supra, § 109.08 at 109-54. This approach reconciles the purpose of [§ ] 109(g)(2) with its language, without adding an exception for the court’s discretion, and without adding a condition that there be a causal connection or that the motion be pending. It [produces a result] ... that is both equitable and consistent with the intent of Congress. Waxman, Judicial Follies, supra, at 170. Applying the above approach, I conclude that in the present case, the bankruptcy court properly denied the Trustee’s motion to dismiss. This is so because the debtor successfully defended against Wells Fargo’s request for relief from the stay. More specifically, after the bankruptcy court granted the request based on Wells Fargo’s having mistakenly asserted that the Beals did not object to it, the court vacated the grant with Wells Fargo’s agreement. In essence, Wells Fargo withdrew its request for relief from the stay. Therefore, the order of the" }, { "docid": "14136426", "title": "", "text": "B.R. at 509 (stating that § 109(g)(2) “was enacted to curb debtor abuses of the bankruptcy code and make its use a last resort”); In re Harris, No. -, 2005 Bankr.LEXIS 1629, at *17 (Bankr.N.D.Ga. July 29, 2005) (stating that legislative history of statute indicates that Congress intended § 109(g)(2) to “provide courts with greater authority to control abusive multiple filings”) (quoting S.Rep. No. 65, 98th Cong. 1st Sess. 74 (1983)). Yet, as we have seen, the statute applies in situations where debtors are not abusive and in those situations it does not serve Congress’s purpose. To the extent that the statute harms innocent debtors, it also is at odds with Congress’s intent in enacting the Bankruptcy Code, which was to provide “a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). Thus, § 109(g)(2) presents a dilemma. Its unambiguous language does not authorize judges to exercise discretion as to when to apply it. Yet, it is overly inclusive and if applied in some situations, causes a result that is at odds with Congress’s intention. I conclude that § 109(g)(2)’s plain language can be reconciled with Congress’s intent by applying the statute in all fact situations that fall within its terms (thereby recognizing its mandatory character) except for certain limited and clearly defined circumstances where it undeniably produces a result not intended by Congress. These circumstances are when the motion for relief from the stay has been withdrawn, dismissed or denied. “Congress could not possibly have intended to penalize the debtor for a creditor’s motion that was filed in error or that lacks merit, and subsequent dismissal and refiling surely would not be abusive.” Waxman, Judicial Follies, supra, at 164. Collier agrees, stating that “in light of its purpose," }, { "docid": "15578840", "title": "", "text": "and In re Smith, 58 B.R. 603 (W.D.Pa.1986). The antithesis of the mechanical approach is found in such cases as In re Santana, 110 B.R. 819 (Bankr.W.D.Mich.1990). Finding that the mechanical application of § 109(g)(2) would yield an absurd result contrary to the intent of Congress, the Santana court investigated the Congressional purpose for drafting § 109(g)(2). Relying on the Congressional intent, the court limited § 109(g)(2) to the scope of abuse which Congress attempted to remedy, namely, situations where a debtor uses dismissal and subsequent refiling to string along a foreclosing creditor. Id. at 821. Since Congress intended § 109(g)(2) to curb abuse of § 1307(b), which grants Chapter 13 debtors an absolute right to dismiss, the court chose to employ a discretionary standard for § 109(g)(2). Id. Factors relevant to the Santana court’s inquiry include: evidence of an intent to forestall the creditor seeking dismissal, the existence of prior requests for relief by the petitioning creditor, and any prejudicial effect of the prior dismissal. Id. at 821-822. This discretionary application is also used in the 9th Circuit, see In re Luna, 122 B.R. 575 (9th Cir.BAP 1991), and in other bankruptcy courts, see e.g. In re Jones, 99 B.R. 412 (Bankr.E.D.Ark.1989). B. Plain language and the Eighth Circuit While the reasoning in the Santana case is persuasive, this Court will not ignore the plain language of the statute. Section 109(g)(2) applies if “the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief ...” (emphasis added). The word “following” in the statute requires some relationship between the timing of the § 362 request and the voluntary dismissal. Furthermore, by requiring that the debtor both “request” and “obtain” the dismissal after the request for relief, the statute requires a causal connection such that the request for relief triggers the dismissal. Had the statute been written to curb successive dismissals generally, it would not have been so specific in requiring that both the request and the granting of dismissal follow the § 362 request. The plain language of § 109(g)(2) thus applies" }, { "docid": "17225767", "title": "", "text": "Luna, 122 B.R. at 577. In Santana, on similar facts, the court concluded that the language of § 109(g)(2) was unambiguous, and that, if applied as written, the statute dictated dismissal. However, the court went on to state that “to apply it literally to the facts now before me would produce, if not an absurd result, then certainly one which goes far beyond the scope of the abuse which it appears Congress was attempting to cure.” Santana, 110 B.R. at 821. Consequently, the court declined to apply the statute as written, and denied the creditor’s motion to dismiss. Clearly bad facts make for bad law. In both instances, the Luna and Santana courts reached beyond their judicial roles to achieve a desired result. Neither Section 109(g)(2), while subject to various legitimate interpretations, nor the Bankruptcy Code provide for such extraordinary judicial discretion and interpretation. The Luna and Santana courts had other means with which to punish creditors for willful violations of the automatic stay. Both courts utilized Section 109(g)(2) to remedy a perceived wrong. 2. Strict Approach The second approach is a strict application of Section 109(g)(2). Courts utilizing this approach hold that the meaning of Section 109(g)(2) is plain and unambiguous, and that the language of the statute dictates a broad rule of dismissal. See, e.g., In re Andersson, 209 B.R. 76 (6th Cir. BAP 1997); In re Keziah, 46 B.R. 551 (Bankr.W.D.N.C.1985). The rationale behind a strict interpretation is explained in the Keziah decision. There, the court held that even though one could interpret “the words ‘following the filing’ [to] mean[ ] ‘in consequence of the filing’ or ‘as a result of the filing,’” the proper interpretation is that Section 109(g)(2) is activated any time a motion for relief from stay is filed earlier in time than the granting of a voluntary dismissal. Keziah, 46 B.R. at 555. The court added that Congress might have intended bankruptcy courts to look into debtor motivations when moving for a voluntary dismissal had the Section been placed in another part of the Code, such as sections 1112 or 1825. According to" }, { "docid": "14136422", "title": "", "text": "and the debtors want to surrender the collateral to the mortgagee, not file serial bankruptcy petitions to frustrate the mortgagee’s efforts to recover the collateral), leads to absurd results that could not have been intended by Congress. 311 B.R. at 232. Courts have struggled with the question of whether to apply § 109(g)(2) to fact situations that are within its literal language but that Congress could not have intended it to cover. Most courts have characterized the statute as “mandatory” and applied it without regard to the disposition of the request for stay relief in the prior case. Keith M. Lundin, Chapter IS Bankruptcy § 23.1 (3d ed.2006); see, e.g., In re Andersson, 209 B.R. 76 (6th Cir. BAP1997); In re Keziah, 46 B.R. 551 (Bankr.W.D.N.C.1985). Other courts have treated § 109(g)(2) as discretionary and declined to apply it if the debtor acted in good faith or if applying the statute produced an absurd or unfair result. Waxman, Judicial Follies, supra, at 154; see, e.g., Luna, 122 B.R. at 577; Patton, 49 Bankr. at 589. However, courts treating the statute as discretionary have been criticized for ignoring its plain meaning, for inadequately justifying their conclusion that it is discretionary and for inviting debtors to argue almost as a matter of course that it should not be applied literally. Waxman, Judicial Follies, supra, at 153; see also Norton & Norton, supra, § 115.7 (stating that “the courts that have avoided precise application of § 109(g)(2) have not articulated reasons based on statutory construction or legislative history”). Thus, courts have been unable to develop a satisfactory approach to § 109(g)(2). Courts that emphasize its plain meaning and treat it as mandatory apply it to fact situations that Congress could not have intended it to cover. As a result, they cause harm to debtors that have not engaged in misconduct. Courts that treat the statute as discretionary, however, have difficulty squaring their approach with the language of the statute and are vulnerable to the criticism that the approach lacks standards. And, for the reasons discussed in footnote three, the causal connection and pending" }, { "docid": "17225765", "title": "", "text": "situation, avoiding results that would lead to absurd, inequitable, or unfair results. The second approach is a strict application of Section 109(g)(2) using the plain meaning of the words of the statute. This line of cases asserts that Section 109(g)(2) is triggered anytime a voluntary dismissal follows the filing of a motion for relief. The last approach also applies the plain meaning of the statute, but conditions its application upon a causal connection between a motion for relief from the automatic stay and a debtor’s voluntary dismissal of his case. 1. Equitable Approach We turn our attention first to the § 109(g)(2) approach that balances the equities of each situation. Courts using this approach tend to fall in one of two camps. The first, as evidenced in In re Luna, defers to the equities of each situation because a strict application of the statute would lead to an “absurd, inequitable, or unfair result.” 122 B.R. 575, 577 (9th Cir. BAP 1992). Other courts relying on concepts of equity cite Congressional intent and apply the statute in only a limited number of cases rather than effectuate the statute across the board. See, e.g., In re Santana, 110 B.R. 819 (Bankr.W.D.Mich.1990). In Luna, a creditor in her first case, Home Savings, requested and obtained relief from the automatic stay in order to sell previously foreclosed property. The debt- or then filed a voluntary motion for dismissal and the judge granted her motion. Within 180 days of her voluntary dismissal, the debtor filed a second bankruptcy that should have prevented Home Savings from proceeding with the sale of the previously foreclosed property. Despite its knowledge of the second petition, however, Home Savings sold Luna’s property three weeks after the second filing date. The court held that it would adopt a discretionary approach to § 109(g)(2) because to do otherwise “would reward Home Savings for acting in bad faith [by wilfully violating the automatic stay in the second case] and punish Luna for acting in good faith [by seeking to have the bankruptcy court resolve a dispute over possible redemption of the mortgaged property].”" }, { "docid": "14136429", "title": "", "text": "bankruptcy court denying the Trustee’s motion to dismiss is affirmed. III. CONCLUSION For the reasons stated, IT IS ORDERED that the Trustee’s motion for leave to appeal is GRANTED. IT IS FURTHER ORDERED that the decision of the bankruptcy court is AFFIRMED and this case is REMANDED to the bankruptcy court for further proceedings consistent with this decision. . Section 362(a)(1) stays any \"action or proceeding against the debtor.” The stay remains in effect until the bankruptcy court disposes of the case or grants relief from the stay. In r& Williams, 144 F.3d 544, 546 (7th Cir.1998). . Section 362(d) provides: ”[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay.” . Courts have employed two other approaches to § 109(g)(2). One approach reads the statute as precluding refiling only when there is a \"causal connection between the creditor's motion for relief from stay and the debtor’s subsequent motion for and obtaining of a voluntary dismissal.” Waxman, Judicial Follies, supra, at 158; see also In re Copman, 161 B.R. 821, 823-24 (Bankr.E.D.Mo.1993). Courts employing this approach focus on the word \"following” and construe it as meaning \"to be the result of.” Id. However, this interpretation has been questioned because in § 109(g)(2) \"following” is not a verb, but a preposition meaning \"subsequent to.” Wax-man, Judicial Follies, supra, at 160. Other courts have applied § 109(g)(2) only when the motion for relief from stay is unresolved at the time that the debtor obtains a voluntary dismissal. Id. at 161. However, the pending approach is inconsistent with the purpose of the statute, which is to deter abusive bankruptcy filings. As one court explains, “[b]y restricting the application of § 109(g)(2) to those cases where there is a pending, unresolved motion for relief from stay at the time of the voluntary dismissal,” courts “would allow a debtor to refile contin uously, thereby obtaining the protection of the automatic stay, so long as it did not dismiss the previous action while the motion for relief from stay was pending before the court.” In" }, { "docid": "14136417", "title": "", "text": "her appeal, the Trustee argues that pursuant to § 109(g)(2), the bankruptcy court should have dismissed the Beals’s refiled petition. Section 109(g)(2) provides as follows: no individual or family farmer may be a debtor ... who has been a debtor in a case ... at any time in the preceding 180 days if — ... (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay. Congress enacted § 109(g)(2) in 1984 for the purpose of curbing what it perceived to be.abusive repetitive bankruptcy filings by debtors. 130 Conf., Rec. 20, 088 (1984) (Statements of Sen. Hatch); Ned W. Wax-man, Resolving the Split of Authority Concerning Code Section 109(g)(2), 10 Norton Bankruptcy Law Advisor 1, 1 (2005). The typical scenario that the provision is intended to prevent is a debtor’s voluntary dismissal of a case and subsequent refiling of a new case for the purpose of “preventing creditors from acquiring relief from the automatic stay and pursuing foreclosing remedies in state court proceedings.” Id. (quoting In re Holder, 151 B.R. 725, 727 (Bankr.D.Md.1993) (internal quotation marks omitted)). The statute gives secured creditors a 180 day window to pursue state law remedies free of the automatic stay. See Holder, 151 B.R. at 727; see also In re Ulmer, 19 F.3d 234, 235 (5th Cir.1994) (stating that without § 109(g)(2), “a debtor could move in and out of bankruptcy, forcing a creditor to pursue time and again the right to collect a debt”); Matter of Patton, 49 B.R. 587, 589 (Bankr. M.D.Ga.1985) (stating that § 109(g)(2) “is intended to address the situation in which ... [t]he debtor [attempts to] ... continually frustrate the creditor’s attempts to foreclose.”); William L. Norton Jr. & William L. Norton III, Norton Bankruptcy Law & Practice 2d § 115.7 (2006) (stating that “[s]ection 109(g)(2) was enacted to defeat the practice observed in some jurisdictions of multiple refilings in an effort to overcome the grant of relief from the stay in a prior case”). However, when it drafted § 109(g)(2), Congress used overly inclusive language" }, { "docid": "14136419", "title": "", "text": "such that the statute applies in situations that are unrelated to its purpose. See Waxman, Judicial Follies, supra, at 154 (stating that “the literal language of the statute operates more inclusively than Congress intended”) (citations omitted); see also Alan N. Resnick, et. al., 2 Collier on Bankruptcy § 109.08, at 109-54 (15th ed. rev.2005) (stating that in light of its purpose, § 109(g)(2) should not apply “if the debtor successfully defended against or resolved the motion for relief from the stay or paid in full the creditor who moved for relief’ or if the first case is remote in time from the motion for stay relief); In re Hutchins, 303 B.R. 503 (Bankr.N.D.Ala. 2003) (declining to apply statute where application would create an absurd result); In re Luna, 122 B.R. 575, 576 (Bankr.9th Cir.1991) (declining to apply the statute where it punished the debtor “for acting in good faith”). Read literally, § 109(g)(2) requires a debtor to wait 180 days to file a bankruptcy petition after a creditor has requested relief even if the creditor filed the request in error and subsequently withdrew it and even if the request was meritless. See Waxman, Judicial Follies, supra, at 154 (stating that Congress could not have intended to punish a debtor for a creditor’s motion that was filed in error or that lacks merit). Courts have discussed the problems presented by § 109(g)(2)’s over inclusiveness. For example, the bankruptcy court in this district stated: Surely it is absurd to have the following result: Debtor stops making his or her Chapter 13 payments after a motion for relief from stay is filed. Trustee files a motion to dismiss the case and the motion is granted. Debtor is eligible for a new Chapter 13 without the mechanical application of § 109(g)(2). Alternatively, after or following the filing of a motion for relief from stay, Debtor suffers a job loss, stolen purse, on the job injury or other catastrophic event. She voluntarily dismissed her Chapter 13 to file a new Chapter 13 to include additional debt or to propose a different reorganization or repayment plan" }, { "docid": "3826075", "title": "", "text": "motion to dismiss: We decline to follow the line of authority which requires mandatory application of section 109(g)(2). In this case, mechanical application of section 109(g)(2) would reward [a creditor] for acting in bad faith and punish [the debtor] for acting in good faith. Accordingly, because “[l]egislative enactments should never be construed as establishing statutory schemes that are illogical, unjust, or capricious”, we conclude that the bankruptcy court properly declined to apply section 109(g)(2) to [the debtor’s] second bankruptcy petition. In re Luna, 122 B.R. at 577 (quoting Bechtel Constr., Inc. v. United Bhd. of Carpenters & Joiners of America, 812 F.2d 1220, 1225 (9th Cir.1987)). See also Greenwell v. Carty (In re Carty), 149 B.R. 601, 603 (9th Cir. BAP 1993) (explaining that the “purpose behind § 109(g)(2) is to prevent abusive repeat filings: ‘The obvious thrust of [§ 109(g)(2)] is to preclude the debtor from denying the creditor the benefit of termination of the stay by filing another case reimposing the stay.’ ” (quoting In re Berts, 99 B.R. 363, 365 (Bankr.N.D.Ohio 1989))). Under the BAP’s decisions, the Court has discretion to decline to apply § 109(g)(2) mechanically when the circumstances warrant granting a debtor relief, e.g., when an illogical, unjust or capricious result would follow, or when the benefit of a dismissal would inure to a bad faith creditor. This interpretive approach to § 109(g)(2) is arguably at odds with this Court’s decision in In re Perkins, 94 I.B.C.R. 40 (Bankr.D.Idaho 1994). In that case, the Court relied upon § 109(g)(2) to dismiss a case where it appeared that the debtor was utilizing the serial filing of bankruptcy petitions to thwart her creditor’s attempts to foreclose on her home. Id. at 42. In In re Perkins, the Court noted: The language of the statute requires only that the voluntary dismissal of the prior bankruptcy case follow in time the filing of a request for stay relief.... While interpreting the statute strictly will result in its application to more situations than necessary in order to prevent the abuse with which Congress was principally concerned, this Court is disinclined" }, { "docid": "19409951", "title": "", "text": "strict interpretation of § 109(g)(2) employ an equitable approach to determining a debtor's eligibility under § 109(g)(2). In essence, they consider the totality of the circumstances and balance the equities. See In re Brown , 534 B.R. 673, 676 (Bankr. E.D. Va. 2015) ; Hutchins , 303 B.R. at 509 (\"Thus, this court will look at the facts of this case to determine if the results are absurd if [ § 109(g)(2) ] is strictly applied.\"). For example, in In re Luna , which the Debtors cite in support here, the debtor's mortgagee obtained relief from the automatic stay, but the court ordered that the mortgagee could not publicize a foreclosure sale until it provided the debtor with an accounting of the amounts necessary to reinstate and pay off the loan secured by the debtor's residence. 122 B.R. 575, 576 (B.A.P. 9th Cir. 1991). Shortly after the court granted stay relief, the debtor voluntarily dismiss her case. Id. After the mortgagee willfully violated the automatic stay in the debtor's subsequent case, the mortgagee filed a motion to dismiss the case under § 109(g)(2), which the bankruptcy court denied. Id. at 577. As the bankruptcy appellate panel noted there, \"[m]echanical application of [§] 109(g)(2) would reward [the mortgagee] for acting in bad faith and punish [the debtor] for acting in good faith.\" Id. ; see also In re Beal , 347 B.R. 87, 93 (E.D. Wis. 2006) (employing the equitable approach to affirm the bankruptcy court's denial of a motion to dismiss a subsequent case when the debtor successfully defended against a request for stay relief in the preceding case before voluntarily dismissing it). Finally, other courts adopt an approach \"requir[ing] a causal relationship between the voluntary dismissal of the previous case and the motion for relief from stay the creditor had filed in that case.\" Richter , 2010 WL 4272915, at *3. As one court noted, \"[t]his interpretation seems the most obvious and natural meaning when one considers that Congress' intent in adding [§] 109(g) to the Bankruptcy Code was to remedy the abusive practice of serial bankruptcy filings.\" First" }, { "docid": "14136421", "title": "", "text": "in light of the substantial change in the Debtor’s finances. Under the latter facts, Movant would argue that § 109(g)(2) prohibits the second opportunity for the debtor. In re Howard, 311 B.R. 230, 231-32 (Bankr.E.D.Wis.2004) (quoting Hutchins, 303 B.R. at 508-09) (internal quotation marks omitted). The Howard court also explained that: wooden application of the statute could lead to abuse by creditors. Motions for relief from stay are common in chapter 13 cases when debtors miss post-petition payments; occasionally, the creditor has made an accounting error, and withdraws the motion immediately after the debtor demonstrates that the payments in fact have been made. If the debtor dismissed a chapter 13 case “following” one of these erroneous motions for stay relief, strict application of the statute would bar the debtor from obtaining further bankruptcy relief for 180 days. The application of the statute to these facts, those posited in Hutchins, and indeed those present in the instant case (in which the motion for relief from stay was resolved nine months prior to the debtors’ requested dismissal, and the debtors want to surrender the collateral to the mortgagee, not file serial bankruptcy petitions to frustrate the mortgagee’s efforts to recover the collateral), leads to absurd results that could not have been intended by Congress. 311 B.R. at 232. Courts have struggled with the question of whether to apply § 109(g)(2) to fact situations that are within its literal language but that Congress could not have intended it to cover. Most courts have characterized the statute as “mandatory” and applied it without regard to the disposition of the request for stay relief in the prior case. Keith M. Lundin, Chapter IS Bankruptcy § 23.1 (3d ed.2006); see, e.g., In re Andersson, 209 B.R. 76 (6th Cir. BAP1997); In re Keziah, 46 B.R. 551 (Bankr.W.D.N.C.1985). Other courts have treated § 109(g)(2) as discretionary and declined to apply it if the debtor acted in good faith or if applying the statute produced an absurd or unfair result. Waxman, Judicial Follies, supra, at 154; see, e.g., Luna, 122 B.R. at 577; Patton, 49 Bankr. at 589." }, { "docid": "14136420", "title": "", "text": "filed the request in error and subsequently withdrew it and even if the request was meritless. See Waxman, Judicial Follies, supra, at 154 (stating that Congress could not have intended to punish a debtor for a creditor’s motion that was filed in error or that lacks merit). Courts have discussed the problems presented by § 109(g)(2)’s over inclusiveness. For example, the bankruptcy court in this district stated: Surely it is absurd to have the following result: Debtor stops making his or her Chapter 13 payments after a motion for relief from stay is filed. Trustee files a motion to dismiss the case and the motion is granted. Debtor is eligible for a new Chapter 13 without the mechanical application of § 109(g)(2). Alternatively, after or following the filing of a motion for relief from stay, Debtor suffers a job loss, stolen purse, on the job injury or other catastrophic event. She voluntarily dismissed her Chapter 13 to file a new Chapter 13 to include additional debt or to propose a different reorganization or repayment plan in light of the substantial change in the Debtor’s finances. Under the latter facts, Movant would argue that § 109(g)(2) prohibits the second opportunity for the debtor. In re Howard, 311 B.R. 230, 231-32 (Bankr.E.D.Wis.2004) (quoting Hutchins, 303 B.R. at 508-09) (internal quotation marks omitted). The Howard court also explained that: wooden application of the statute could lead to abuse by creditors. Motions for relief from stay are common in chapter 13 cases when debtors miss post-petition payments; occasionally, the creditor has made an accounting error, and withdraws the motion immediately after the debtor demonstrates that the payments in fact have been made. If the debtor dismissed a chapter 13 case “following” one of these erroneous motions for stay relief, strict application of the statute would bar the debtor from obtaining further bankruptcy relief for 180 days. The application of the statute to these facts, those posited in Hutchins, and indeed those present in the instant case (in which the motion for relief from stay was resolved nine months prior to the debtors’ requested dismissal," }, { "docid": "5848837", "title": "", "text": "filed the Motion for Relief in the prior case, it is the only party that has standing to object to Debtors’ subsequent filing. However, Debtors provided no legal authority for this position. Furthermore, this Court has held that a motion to dismiss for violation of Section 109(g)(2) can be granted on the motion of a creditor that had not filed for relief from stay in the prior case. Stuart, 297 B.R. at 667. See also Collier on Bankruptcy ¶ 109.08 (15th ed. rev.2004)(“[B]ecause the statute focuses on the debtor’s behavior, the party seeking dismissal of the subsequent case need not be the party that sought relief from the automatic stay in the prior case.”). Although Green Tree did not object to the filing of Case Two, its rights under the motion for relief were not exhausted and were affected by the filing of Case Two, and all parties to Case Two have standing to raise that point. CONCLUSIONS OF LAW Debtors filed the present case within 180 days of voluntarily requesting dismissal of them prior case while a motion for relief remained unresolved; therefore, I conclude that they are not qualified to be debtors under 11 U.S.C. § 109(g)(2). Further, the 180 day period prescribed by Section 109(g) is tolled during the pendency of a case filed in violation of that section. See In re Wilson, 85 B.R. 72, 73 (Bankr.N.D.Ill.1988). This case was filed on the same day that Debtors requested the dismissal of Case One. Accordingly, Debtors must wait the entire 180 day period from the date of this Order before filing another bankruptcy petition. In Stuart, this Court held that Section 109(g)(2) governs only an individual’s eligibility for relief and not the power of this Court to afford such relief. For that reason, any relief received prior to the Section 109(g)(2) challenge may not be challenged for lack of jurisdiction of this Court over Debtors. Stuart, 297 B.R. at 670. ORDER Pursuant to the foregoing, IT IS THE ORDER OF THIS COURT that Kell’s Grove’s Motion to Dismiss is GRANTED. Debtors are barred from refiling for 180" }, { "docid": "14782642", "title": "", "text": "as to whether the particular debtor qualifies to maintain a case under Title 11. See, e.g., Home Savings of America v. Luna (In re Luna), 122 B.R. 575 (9th Cir. BAP 1991). This is the view taken by the Ninth Circuit Bankruptcy Appellate Panel when it “decline[d] to follow the line of authority which requires mandatory application of section 109(g)(2).” Id. at 577. In Luna the Court found that the debtor had acted in good faith, but that the creditor seeking to dismiss the debtor’s bankruptcy case had shown bad faith. To dismiss the case, the court held, would create an unjust result. According to the court: because ‘legislative enactments should never be construed as establishing statutory schemes that are illogical, unjust, or capricious’, we conclude that the bankruptcy court properly declined to apply section 109(g)(2) to Luna’s second bankruptcy petition. Id. (citation omitted). Still other courts have taken the position that section 109(g)(2) only applies to exclude a person from being a debtor under Title 11 when there is a causal relationship between the voluntary motion to dismiss and the motion for relief from stay. See, e.g., In re Copman, 161 B.R. 821 (Bankr.E.D.Mo.1993); In re Santana, 110 B.R. 819 (Bankr.W.D.Mch.1990); Matter of Patton, 49 B.R. 587 (Bankr.M.D.Ga.1985). The court in Matter of Patton concluded that: section 109(f)(2) is intended to address the situation in which the debtor files a bankruptcy case to stay a foreclosure, and when the creditor seeks relief from the automatic stay, the case is then voluntarily dismissed by the debtor. The debtor then refiles prior to the creditor’s completing his next attempt to foreclose, and through this scheme, the debtor can continually frustrate the creditor’s attempts to foreclose. 49 B.R. at 589. Indeed, Congress’ justification for adding section 109(g) to the Bankruptcy Code in 1984 is very similar: “Subsection (f) adds a new paragraph to section 109. The purpose of the new paragraph is to provide the court with greater authority to control abusive multiple filings.” S.Rep. No. 65, 98th Cong. 1st Sess. 74 (1983). The same rationale was adopted by the court in" }, { "docid": "3826074", "title": "", "text": "Cir. BAP 1988). Furthermore, despite the statute’s seemingly mandatory language (i.e., “no individual ... may be a debtor ... if’), the BAP has held that the bankruptcy court has discretion in deciding whether to dismiss a case based upon § 109(g)(2). Home Sav. of Am. v. Luna (In re Luna), 122 B.R. 575 (9th Cir.BAP1991). In In re Luna, a bankruptcy court granted a mortgage creditor stay relief in the debtor’s chapter 13 case, but also ordered the creditor to provide the debtor with an accurate statement as to the amount required to reinstate the delinquent mortgage. The debtor later obtained a dismissal of the bankruptcy case. When the creditor proceeded with the foreclosure allegedly without ever accounting to the debtor for the amount of the delinquency, the debtor filed another chapter 13 case. The creditor appealed the bankruptcy court’s refusal to dismiss the second case under § 109(g)(2) to the BAP. In affirming, the panel explained that the impact of the application of § 109(g)(2) should be considered when a bankruptcy court addresses a motion to dismiss: We decline to follow the line of authority which requires mandatory application of section 109(g)(2). In this case, mechanical application of section 109(g)(2) would reward [a creditor] for acting in bad faith and punish [the debtor] for acting in good faith. Accordingly, because “[l]egislative enactments should never be construed as establishing statutory schemes that are illogical, unjust, or capricious”, we conclude that the bankruptcy court properly declined to apply section 109(g)(2) to [the debtor’s] second bankruptcy petition. In re Luna, 122 B.R. at 577 (quoting Bechtel Constr., Inc. v. United Bhd. of Carpenters & Joiners of America, 812 F.2d 1220, 1225 (9th Cir.1987)). See also Greenwell v. Carty (In re Carty), 149 B.R. 601, 603 (9th Cir. BAP 1993) (explaining that the “purpose behind § 109(g)(2) is to prevent abusive repeat filings: ‘The obvious thrust of [§ 109(g)(2)] is to preclude the debtor from denying the creditor the benefit of termination of the stay by filing another case reimposing the stay.’ ” (quoting In re Berts, 99 B.R. 363, 365 (Bankr.N.D.Ohio 1989)))." } ]

[ { "docid": "19508876", "title": "", "text": "sometime in 2012 or 2013 he moved in with his mother because it became too difficult to live alone. The ALJ's focus on evidence from 2008 to Dr. Roy's examination in 2012 left unanswered the possibility of disability onset sometime thereafter, and perhaps shortly thereafter as evinced by Walker's own testimony. See Briscoe , 425 F.3d at 354 (drawing on 20 C.F.R. § 404.1529(c)(2) to explain that an ALJ must consider a claimant's subjective complaints of pain and its effects on him even when available objective evidence does not substantiate the claimant's statements). We owe a word about the ALJ's decision to afford only partial weight to Dr. Goudy's August 2012 assessment of Walker. As the treating physician, Dr. Goudy's opinion was entitled (under the regulations in effect at the time) to controlling weight unless the ALJ set forth \"good reasons\" for assigning it lesser weight. 20 C.F.R. § 404.1527(c)(2) ; Schaaf v. Astrue , 602 F.3d 869, 875 (7th Cir. 2010) (explaining that an ALJ \"must give a good reason\" for rejecting a treating physician's opinion). The reasons set forth by the ALJ are not supported by substantial evidence, as they too discount, if not overlook, express conclusions Dr. Goudy made about Walker's condition from August 2012 forward. In clear and precise terms, Dr. Goudy stated that Walker's condition-his recurring dizziness and imbalance, worsening memory, inability to walk any meaningful distance-not only left him unable to work, but was expected to worsen further in the coming years. The ALJ needed to offer a good reason for disregarding this opinion, coming as it did from Walker's treating physician in August 2012. In the face of Walker's deteriorating condition, the record does not support the ALJ's decision to prefer Dr. Roy's one-time assessment of Walker in April 2012 over the views and prognosis of Walker's treating physician from a later point in time. III We are mindful that Walker's application for disability benefits has already made two laps through the administrative process. And, while we appreciate the understandable desire for finality, we cannot short circuit the requirement that substantial evidence support" } ]

[ { "docid": "8479701", "title": "", "text": "in June 2011, shortly before she applied for benefits. Indeed, the ALJ found that Hill suffers from degenerative joint disease (osteoarthritis), which often grows more severe with the passage of time. See Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir.2013) (ALJ’s reasoning flawed because it ignored the fact that “degenerative” conditions get worse over time). At oral argument, counsel for the Commissioner attempted .to liken Hill’s activities of daily living, particularly babysitting, with working full time. But Hill’s home life was not a reason given by the ALJ for denying benefits and so not a proper basis for us to uphold the ALJ’s decision. See Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir.2014). (The ALJ addressed Hill’s home activities only to the extent that they showed that she had use of her right arm.) Counsel’s reasoning is unsound, in any event, because we have repeatedly warned against equating the activities of daily living with those of a full-time job. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012); Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir.2010). It might be argued that these mistakes in evaluating Hill’s credibility were harmless. As the Commissioner points out, no doctor has opined that Hill has more limitations than the ALJ incorporated into her assessment of Hill’s residual functional capacity. But Hill testified that she is more limited, and her testimony cannot be disregarded simply because it is not corroborated by objective medical evidence. See Hall v. Colvin, 778 F.3d 688, 691 (7th Cir.2015); Pierce v. Colvin, 739 F.3d 1046, 1049-50 (7th Cir.2014); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.2006). We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had she not inappropriately “played doctor,” ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir.2011) (explaining" }, { "docid": "7839253", "title": "", "text": "diagnostic 'tests, in which she walked, moved, sensed touch, and had no spasms or tenderness. She argues further that the ALJ wrongly discredited her pain complaints by misstating medical evidence from two examining physicians who recommended that, she engage- in unspecified physical activity. She contends also that the ALJ drew an unwarranted inference that her pain was not disabling because she went six months without fibromyalgia drugs, but the ALJ never considered the reason she offered for that medication gap. Lastly, Gerstner argues that the ALJ wrongly concluded that she could work based on a physician’s notation that she had searched for employment. We agree with Gerstner that the ALJ’s adverse credibility determination must be overturned. This court will overturn an ALJ’s adverse credibility finding if it is patently wrong. See Larson v. Astrue, 615 F.3d 744, 745 (7th Cir.2010); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). The ALJ here overstated test results and treatment recommendations and drew unjustified inferences from Gerstner’s medication gap and job search. First, the ALJ overstated findings from three diagnostic tests to discredit Gerst-ner’s complaints of intermittent fibromyal-gia pain. The ALJ said that Gerstner’s pain complaints were inconsistent with her abilities to sit, move, and walk for an unstated period in one exam, her normal sensation in extremities during another exam, 'and her lack of spasms and tenderness in a third exam. But these findings are consistent with Gerstner’s pain complaints. She never testified that she had constant disabling pain, or that her condition totally impaired the abilities tested in these exams. Instead, she said that her pain was triggered by prolonged sitting, standing, or activity and stress. The ALJ’s analysis reveals that he misunderstood the nature of her fibromyalgia pain. The extent of fibromyalgia pain cannot be measured with objective tests aside from a trigger-point assessment. See Vanprooyen v. Berryhill, 864 F.3d 567, 568 (7th Cir.2017); Fibromyalgia, Diagnosis, Mayo Clinic, http://www.mayoclinic.org',diseases-conditions/fibromyalgia/diagnosis-treatment/diagnosis/dxc-20317823 (visited Nov. 27, 2017). Trigger-point testing on Gerstner pinpointed fiteomyalgia as the source of her pain, and her pain complaints were consistent with her prescription for methadone, an opioid not" }, { "docid": "4850142", "title": "", "text": "had good relationships with two friends. The ALJ pegged her difficulties maintaining concentration, persistence, and pace at the “moderate” level. At Step 4 the ALJ stated that he had given “some weight” to Dr. Rhoades’s opinion that Larson met the criteria in the listing, but he found that Rhoades’s assessment of the severity of Larson’s symptoms was not sufficiently corroborated. Lar son’s testimony about the severity of her impairments, the ALJ thought, was inconsistent with her account of her daily activities. The ALJ concluded that her “psychological symptoms wax and wane based on situational stressors.” At Step 5, the ALJ concluded based on the testimony of a vocational expert that Larson could work as a hand packager or electronics worker. II On appeal, Larson first argues that the ALJ should have granted controlling weight to the opinion of Dr. Rhoades, who easily qualified as her treating psychiatrist, and found her disabled at Step 3. Larson maintains that the assessment given by Rhoades is consistent — or at least not inconsistent — with the evidence in the record. A treating physician’s opinion is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence.” 20 C.F.R. § 404.1527(d)(2); see Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.2010); Denton v. Astrue, 596 F.3d 419, 424 (7th Cir.2010). An ALJ who does not give controlling weight to the opinion of the claimant’s treating physician must offer “good reasons” for declining to do so. 20 C.F.R. § 404.1527(d)(2); see Schaaf, 602 F.3d at 875; Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007). If the ALJ had given Dr. Rhoades’s opinion controlling weight, Larson’s condition would have been recognized as a listed impairment and she would have been found disabled at Step 3. See 20 C.F.R. § 404.1520a(d)(1); Craft, 539 F.3d at 675. All medical experts agreed that Larson met the “A criteria” for depression, and Dr. Rhoades opined that she satisfied the “B criteria” as well. With regard to the latter, Dr. Rhoades saw “marked” difficulties in Larson’s ability" }, { "docid": "6231687", "title": "", "text": "over time are quite benign and offer little support for the degree of limitation that he assessed.” In addition, the Commissioner supplies little insight into what additional observations or tests Dr. Shannon could have conducted to support his challenged opinions. Nor does the Commissioner’s brief discuss any cases that shed light on this issue. Perhaps the Commissioner would be satisfied only if Dr. Shannon had somehow replicated a full work day to test the limits of Brown’s sitting and standing endurance. Such an approach, however, would be both cruel for patients and unrealistic for doctors, given the average medical practitioner’s time and resource constraints. And even assuming that some of Dr. Shannon’s opinions were not fully corroborated by his treatment records, the ALJ cited no evidence that contradicted the opinions. This distinction is an important one, since the mere absence of detailed treatment notes, without more, is “insufficient grounds for disbelieving the evidence of a qualified professional.” Herrmann v. Colvin, 772 F.3d 1110, 1111 (7th Cir. 2014); accord Clifford, 227 F.3d at 870. The ALJ emphasized the fact that Dr. Shannon frequently observed that Brown had a stable gait, performed leg raises without incident, and had normal reflexes and mild to moderate range-of-motion limitations. But these observations do nothing to undermine the sitting, resting, and work-absence opinions that the ALJ rejected. Brown’s gait was observed as she walked, the leg raises were likely performed while she was lying down, and it is unclear how (if at all) the reflexes and range-of-motion tests were relevant to Brown’s ability to sit or stand for extended periods. In effect, the ALJ substituted his judgment for Dr. Shannon’s without explaining why Brown’s activities were inconsistent with Dr. Shannon’s opinions. The ALJ also found that Brown’s self-reported daily living activities undermined Dr. Shannon’s opinions. Although there is not an absolute prohibition against this comparison, see Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008), we have repeatedly cautioned against equating daily living activities with the ability to perform a full day of work, as the former are often subject to different restraints (e.g., longer" }, { "docid": "9134154", "title": "", "text": "importance for mental impairments, even in those cases, it remains the ALJ's duty to evaluate opinion evidence in light of the entire record, and simply accepting Dr. Spurling's and Dr. Roemer's unsupported opinions relating to Plaintiff's ability to sustain fulltime work and absences would amount to an abandonment of that duty. See De Mota v. Berryhill , No. 15Civ. 6855 (PED), 2017 WL 1134771, at *4, 2017 U.S. Dist. LEXIS 44401, at *9 (S.D.N.Y. Mar. 24, 2017) (\"An ALJ is obliged to consider medical opinions on a claimant's functioning and is tasked with reaching a residual functional capacity assessment based on the record as a whole. It is the Commissioner's role to weigh medical opinion evidence and to resolve conflicts in that evidence.\") (internal citation and quotation omitted). Here, it is clear from the record and the written determination that portions of the treating source opinion evidence conflicted with each physician's own treatment notes and assessment of Plaintiff's categories of mental functioning, which were limited to mostly mild or moderate limitations. This ALJ's consideration of the lack of objective evidence was proper in this instance. Remand is not required on this basis. B. Assessment of Plaintiff's RFC Plaintiff next contends that the ALJ erred by arriving at an improper RFC that is not supported by substantial evidence. (Dkt. 12-1 at 6). Plaintiff's argument regarding the RFC appears to be made in conjunction with his argument regarding the improper evaluation of opinion evidence. (See id. at 20-29). In deciding a disability claim, an ALJ is tasked with \"weighting] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.\" Matta v. Astrue , 508 F. App'x 53, 56 (2d Cir. 2013). An ALJ's conclusion need not \"perfectly correspond with any of the opinions of medical sources cited in his decision.\" Id. However, an ALJ is not a medical professional, and \"is not qualified to assess a claimant's RFC on the basis of bare medical findings.\" Ortiz v. Colvin , 298 F.Supp.3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words: An ALJ is" }, { "docid": "10145010", "title": "", "text": "expressed desire to do volunteer work is simply unenlightening. • Cullinan went on dates. The record says that Cullinan wanted to reconnect with her ex-boyfriend and that at one point she “met a man and spent some time with him.” These statements do not describe a pattern of dating that demonstrates a “very active” lifestyle. Moreover, Cullinan was likely “spending time with” several people during her alleged period of disability—her parents, for example. Perhaps the ALJ believed this interaction with one person was evidence of social functioning, but she did not say so; and in any case spending time with someone is too vague a descriptor to contradict Cullinan’s alleged impairments. In citing these questionable examples of a “very active” lifestyle to discredit Culli-nan’s account of how she is limited by her impairments, the ALJ did not rely on substantial evidence. Moreover, the ALJ did not discuss any of Cullinan’s testimony in analyzing her residual functional capacity, so it appears that she gave the testimony no weight despite implying that it was at least partially credible (i.e., “not entirely credible”). Relatedly, Dr. Canzona’s opinion of Cullinan’s limitations, contrary to what the ALJ said, was not inconsistent with his own treatment notes, so the ALJ should not have ignored it. A treating doctor’s opinion is entitled to controlling weight unless it is unsupported by the record. Vanprooyen v. Berryhill, 864 F.3d 567, 572 (7th Cir. 2017). An inadequate evaluation of a treating physician’s opinion requires remand. See Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir. 2016); Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011). Dr. Canzona treated Cullinan every other week for almost all of 2013. The ALJ said that Dr. Canzona’s opinion should not carry controlling weight because it was contradicted by Cullinan’s level of activity and thus lacked support in the record. Instead, the ALJ gave great weight to the opinions of nonexamining agency consultants. But just as Dr. Canzona’s treatment notes did not show that Cullinan was “very active” and therefore not believable, the notes also do not contradict Dr. Canzona’s opinion of Cullinan’s limitations." }, { "docid": "19534048", "title": "", "text": "the ALJ did not explain his view of these factors in assigning little weight to Dr. Paul's opinions. Finally, the ALJ wrongly discounted Dr. Paul's opinion as an improper legal conclusion by a medical professional. Whether a claimant qualifies for benefits is a question of law, Garcia v. Colvin , 741 F.3d 758, 760 (7th Cir. 2013), but a medical opinion that a claimant is unable to work is not an improper legal conclusion, Bjornson v. Astrue , 671 F.3d 640, 647-48 (7th Cir. 2012) (remanding for the ALJ to consider the opinion that the claimant \"remained unable to work\") (citing 20 C.F.R. § 404.1527(e)(1) ). Indeed, ALJs must consider medical opinions about a patient's ability to work full time because they are relevant to the RFC determination. Garcia , 741 F.3d at 760. Here Dr. Paul's most recent opinion is that Lambert's chronic back pain is so limiting that he no longer can tolerate even sedentary work. That's not an improper legal conclusion. The ALJ's flawed analysis of Dr. Paul's opinions is compounded by his failure to explain why he gave considerable weight to the opinions of the agency physicians that Lambert could perform sedentary work. It is puzzling why the ALJ would credit these opinions while discounting Dr. Paul's as an improper legal conclusion. See Bjornson , 671 F.3d at 648. That inconsistency aside, an ALJ must weigh medical opinions by applying the regulatory factors in 20 C.F.R. § 404.1527(c)(2). The reviewing consultants rendered their opinions before Lambert was treated by the pain specialist, before Dr. Paul fused Lambert's sacroiliac joints in failed attempts to alleviate his pain, before Dr. Paul opined that Lambert's pain had worsened and his limitations had degraded since 2011, and before the physical therapist found Lambert's functional abilities had diminished. ALJs may not rely on outdated opinions of agency consultants \"if later evidence containing new, significant medical diagnoses reasonably could have changed the reviewing physician's opinion.\" Moreno v. Berryhill , 882 F.3d 722, 728 (7th Cir. 2018). The government responds that any error in weighing Dr. Paul's opinions is harmless. An error is" }, { "docid": "20618398", "title": "", "text": "F.3d 693, 696 (7th Cir.2011). Loveless argues that the lan guage is faulty and represents forbidden backward analysis requiring remand. But the use of boilerplate is not a ground to remand if the ALJ justified his credibility assessment based on the evidence. Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir.2014); Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir.2013). And here, although acknowledging Loveless’s testimony that he could not work, the ALJ reasoned that this contention was contradicted by the claimant’s activities of daily living, his routine and conservative medical treatment since 2011, and many earlier reports of minimal or no pain. Loveless insists, though, that the ALJ improperly overemphasized his daily activities. As Loveless correctly notes, we have criticized ALJs for equating activities of daily living with an ability to work. See Bjornson, 671 F.3d at 647; Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir.2010). But the ALJ did not do this. Rather, the ALJ considered Loveless’s description of his daily activities in assessing whether his testimony about the effects of his impairments was credible or exaggerated. See 20 C.F.R. § 404.1529(e)(3)(i) (explaining that agency will consider daily activities in evaluating severity of claimant’s symptoms); SSR 96-7P, 1996 WL 374186, at *3 (directing ALJ to consider daily activities in determining credibility of claimant’s statements about symptoms); Pepper, 712 F.3d at 369 (agreeing with ALJ’s reasoning that claimant’s daily activities undermined her testimony about extent of her symptoms). For example the ALJ considered Loveless’s ability to perform light household chores, drive a car, and shop for groceries. Moreover, the ALJ explicitly acknowledged that Loveless’s ability to engage in these daily activities was not conclusive proof that he was able to sustain full-time work but instead was one factor that weighed against his account of disabling limitations. Loveless also contends that the ALJ failed to give weight to his significant work history. We recently observed that a “claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability.” Hill v. Colvin, 807 F.3d 862, 868 (7th Cir.2015) (quoting Rivera" }, { "docid": "19534041", "title": "", "text": "gave \"little weight\" to Dr. Paul's opinions from July and August 2014. They were, in the ALJ's view, inconsistent with his March 2014 opinion and his objective findings. The ALJ also characterized Dr. Paul's opinion that Lambert would not be able to tolerate a work situation as a legal conclusion reserved to the Commissioner. On the other hand, the ALJ gave \"considerable weight\" to two opinions of state agency consultants who reviewed Lambert's medical records in August 2012 (before the amended onset date) and April 2013 (four months after the amended onset date) and concluded that Lambert could perform sedentary work with restrictions. The Appeals Council denied review. A district judge affirmed the Commissioner's decision and Lambert appeals. II. Analysis Lambert challenges the ALJ's decision to give little weight to the most recent opinions of his treating neurosurgeon, Dr. Paul. He also argues that the ALJ was wrong to discredit his testimony about the severity of his symptoms and limitations. A. Treating Neurosurgeon's Opinions Lambert contests the ALJ's decision to give little weight to Dr. Paul's July and August 2014 opinions that his pain had worsened to the point that he could not tolerate even sedentary work. Because Dr. Paul is a treating physician, his opinion on the nature and severity of Lambert's medical condition is entitled to controlling weight if it is well supported by medical findings and consistent with other record evidence. See 20 C.F.R. §§ 404.1520c(a) (2017) ; Gerstner v. Berryhill , 879 F.3d 257, 261 (7th Cir. 2018) (noting that this treating-physician rule applies only to claims filed before March 27, 2017). Lambert identifies multiple flaws in the ALJ's decision. He argues that the ALJ overlooked medical evidence substantiating Dr. Paul's most recent opinions, wrongly found the opinions inconsistent with Dr. Paul's earlier opinion from March 2014, and failed to consider the relevant factors for evaluating medical source opinions set forth in 20 C.F.R. § 404.1527(c). He also challenges the ALJ's decision to discount Dr. Paul's opinion as a legal conclusion outside a doctor's role. Finally, Lambert asserts that the ALJ failed to explain why Dr." }, { "docid": "8479702", "title": "", "text": "of a full-time job. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012); Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir.2010). It might be argued that these mistakes in evaluating Hill’s credibility were harmless. As the Commissioner points out, no doctor has opined that Hill has more limitations than the ALJ incorporated into her assessment of Hill’s residual functional capacity. But Hill testified that she is more limited, and her testimony cannot be disregarded simply because it is not corroborated by objective medical evidence. See Hall v. Colvin, 778 F.3d 688, 691 (7th Cir.2015); Pierce v. Colvin, 739 F.3d 1046, 1049-50 (7th Cir.2014); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.2006). We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had she not inappropriately “played doctor,” ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir.2011) (explaining that error is harmless only if court is “convinced” that ALJ would reach same result on remand); Spiva, 628 F.3d at 353 (error is not harmless simply because ALJ might have reached the same result absent the error). III. CONCLUSION We REVERSE the district court’s judgment and REMAND this case to the Commissioner for further proceedings. . The parties did not tell us what \"cervical fusion” is, but they should, have. This case is not a dispute about the meaning of an uncommon term or term of art. But parties should define this kind of term even if its meaning is not in dispute and does not drive the outcome. Doing so makes the case more understandable and gives clarity to readers. We have included some definitions to make this opinion more understandable; but they were not necessary to the outcome. \"Cervical fusion” is a surgery that joins bones in the neck. See Cervical Spinal Fusion, WebMD, www. webmd.com/back-pain/cervical-spinal-fusion (visited October 27, 2015, as were the other websites cited in this opinion). . \"Tendinopathy\" is" }, { "docid": "19534047", "title": "", "text": "assessment-all of which supported Dr. Paul's July and August opinions that Lambert's condition had worsened. Physicians may update their views without being inconsistent if their later opinions are based on a patient's changed condition. See Scrogham v. Colvin , 765 F.3d 685, 696-97 (7th Cir. 2014). There is no unexplained inconsistency here. Relatedly, the ALJ weighed Dr. Paul's opinions without considering the regulatory factors listed in 20 C.F.R. § 404.1527(c). ALJs must evaluate a treating physician's noncontrolling opinion by considering the treatment relationship's length, nature, and extent; the opinion's supporting explanation and consistency with other evidence; and any specialty of the physician. Moss v. Astrue , 555 F.3d 556, 561 (7th Cir. 2009) ; Bauer v. Astrue , 532 F.3d 606, 608 (7th Cir. 2008). Dr. Paul, a neurosurgeon specializing in spinal disorders , treated Lambert's back problems for over a year, examined him at least 15 times, and performed two sacroiliac joint surgeries. Dr. Paul based his most recent opinions on the physical therapist's July functional assessment and on his own contemporaneous examinations. Yet the ALJ did not explain his view of these factors in assigning little weight to Dr. Paul's opinions. Finally, the ALJ wrongly discounted Dr. Paul's opinion as an improper legal conclusion by a medical professional. Whether a claimant qualifies for benefits is a question of law, Garcia v. Colvin , 741 F.3d 758, 760 (7th Cir. 2013), but a medical opinion that a claimant is unable to work is not an improper legal conclusion, Bjornson v. Astrue , 671 F.3d 640, 647-48 (7th Cir. 2012) (remanding for the ALJ to consider the opinion that the claimant \"remained unable to work\") (citing 20 C.F.R. § 404.1527(e)(1) ). Indeed, ALJs must consider medical opinions about a patient's ability to work full time because they are relevant to the RFC determination. Garcia , 741 F.3d at 760. Here Dr. Paul's most recent opinion is that Lambert's chronic back pain is so limiting that he no longer can tolerate even sedentary work. That's not an improper legal conclusion. The ALJ's flawed analysis of Dr. Paul's opinions is compounded by" }, { "docid": "10145011", "title": "", "text": "credible (i.e., “not entirely credible”). Relatedly, Dr. Canzona’s opinion of Cullinan’s limitations, contrary to what the ALJ said, was not inconsistent with his own treatment notes, so the ALJ should not have ignored it. A treating doctor’s opinion is entitled to controlling weight unless it is unsupported by the record. Vanprooyen v. Berryhill, 864 F.3d 567, 572 (7th Cir. 2017). An inadequate evaluation of a treating physician’s opinion requires remand. See Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir. 2016); Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011). Dr. Canzona treated Cullinan every other week for almost all of 2013. The ALJ said that Dr. Canzona’s opinion should not carry controlling weight because it was contradicted by Cullinan’s level of activity and thus lacked support in the record. Instead, the ALJ gave great weight to the opinions of nonexamining agency consultants. But just as Dr. Canzona’s treatment notes did not show that Cullinan was “very active” and therefore not believable, the notes also do not contradict Dr. Canzona’s opinion of Cullinan’s limitations. Attending concerts and family functions and spending some time with a man does not show that she is able to work, travel, or use public transportation. Further, his notes that she was able to focus during sessions do not conflict with his opinion that she cannot focus “for extended time periods.” Because the ALJ did not adequately explain the conclusion that Dr. Canzona’s notes were inconsistent with his opinion, the ALJ’s decision to assign no weight to Dr. Canzo-na’s opinion was error. We are also troubled by the fact that the ALJ did not consider Cullinan’s daily extended naps and frequent debilitating headaches in determining her residual functional capacity. No evidence in the record contradicted Cullinan’s testimony about these limitations, so only the adverse credibility determination could explain the ALJ’s omission. But if the credibility finding was erroneous, Cullinan could well be adjudged disabled: the vocational expert said that needing to take a two-hour nap every day would rule out all work. And no one mentioned the headaches, but if they were factored in, the" }, { "docid": "13438513", "title": "", "text": "a week or more of work a month and the vocational expert testified that missing so much work “would not allow for competitive employment.” The regulations state that an ALJ must give a treating physician’s opinion controlling weight if two conditions are met: (1) the opinion is supported by “medically acceptable clinical and laboratory diagnostic techniques[,]” and (2) it is “not inconsistent” with substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2); see Elder v. Astrue, 529 F.3d 408, 415-16 (7th Cir.2008); Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir.2006). If the opinion is unsupported or inconsistent with the record, the ALJ may still choose to accept it, but if the ALJ rejects the opinion, he must give a good reason. 20 C.F.R. § 404.1527(d)(2); Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.2008); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007). Schaaf seemingly contends that because the ALJ did not point to contradictory evidence (expecting, perhaps, an opinion from a doctor saying that Schaaf could work a full month), Dr. Ingalls’s finding must be well-supported. But Schaaf conflates the two areas of inquiry. The ALJ discounted Ingalls’s opinion about Schaaf missing work because he found that In-galls did not explain his opinion and his treatment notes do not clarify the doctor’s reasoning. Although Schaaf insists that Ingalls’s opinion is supported by substantial evidence in the record, we cannot find any “medically acceptable clinical and laboratory diagnostic techniques” documenting the symptoms that supposedly would prevent Schaaf from working. See 20 C.F.R. § 404.1527(d)(2). In Schaafs best attempt to identify objective evidence supporting Ingalls’s opinion, he states that his own complaints provide the necessary basis. But subjective complaints are the opposite of objective medical evidence and, while relevant, do not compel the ALJ to accept Ingalls’s assessment. See Rice v. Barnhart, 384 F.3d 363, 370-71 (7th Cir.2004). Ultimately, though, the ALJ rejected that part of Ingalls’s report for the same reasons he rejected Schaafs testimony about his symptoms: it is inconsistent with substantial evidence in the record. To combat the ALJ’s credibility finding, Schaaf argues that the ALJ improperly" }, { "docid": "4090637", "title": "", "text": "can manage the requirements of the work-place. See Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir.2010); see also Engstrand v. Colvin, 788 F.3d 655, 661 (7th Cir.2015). We have repeatedly rejected that reasoning as “naive,” see Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir.2013), because a person performing chores has flexibility in scheduling, can receive help, and is not held to a minimum standard of performance, unlike an employee. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012). And Stark’s need for frequent breaks is not consistent with light work activity, also contrary to the ALJ’s finding. See, e.g., Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir.2013) (criticizing ALJ’s reliance on claimant’s ability to perform household tasks because inability to get through the day without lying down every hour does not indicate ability to work even sedentary job). Stark testified that she presently requires long breaks between tasks, uses extra time to complete short tasks, and experiences immobilizing pain for a full day after holding her 7-pound grandson. But the ALJ arrived at an RFC that presumes that Stark could take only two fifteen-minute breaks daily, perform tasks 85% of the time, and frequently lift 10 pounds. Thus Stark’s testimony reflects that she cannot do her past job. Stark’s second challenge to the adverse credibility finding rests on the ALJ’s use of language that this court routinely has condemned as “meaningless boilerplate” and “backwards” analysis. See Bjornson, 671 F.3d at 645; Martinez v. Astrue, 630 F.3d 693, 696 (7th Cir.2011); Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir.2010). The ALJ used boilerplate language to find that Stark’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” Use of boilerplate is not automatically ground for remand, see Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir.2014), but it captures a deeper problem in the ALJ’s analysis: the ALJ based her credibility finding on her finding about Stark’s ability to work, but a proper assessment requires the" }, { "docid": "7839252", "title": "", "text": "to consider the consistency of Dr. Callaghan’s opinion with the opinions of other treating, examining, and reviewing medical sources. Although the ALJ discussed the weight to afford these physicians’ opinions, he did not specify how or to what extent he considered these opinions when deciding to assign little weight to Dr. Callaghan’s opinions. Because of these errors, substantial evidence does not support the decision to afford little weight to Dr. Callaghan’s opinions of Gerstner’s limitations from mental impairments, and the case must be remanded for reconsideration of his opinion, see Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir. 2016); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011). B. Adverse Credibility Determination Gerstner also contends that the ALJ wrongly discounted her testimony about the extent of her pain, from fibro-myalgia. The ALJ, using familiar .boilerplate, said that the “claimant’s , statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” Gerstner argues that the ALJ discredited her complaints of intermittent fibromyalgia pain by overstating findings from examining physicians’ diagnostic 'tests, in which she walked, moved, sensed touch, and had no spasms or tenderness. She argues further that the ALJ wrongly discredited her pain complaints by misstating medical evidence from two examining physicians who recommended that, she engage- in unspecified physical activity. She contends also that the ALJ drew an unwarranted inference that her pain was not disabling because she went six months without fibromyalgia drugs, but the ALJ never considered the reason she offered for that medication gap. Lastly, Gerstner argues that the ALJ wrongly concluded that she could work based on a physician’s notation that she had searched for employment. We agree with Gerstner that the ALJ’s adverse credibility determination must be overturned. This court will overturn an ALJ’s adverse credibility finding if it is patently wrong. See Larson v. Astrue, 615 F.3d 744, 745 (7th Cir.2010); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). The ALJ here overstated test results and treatment recommendations and drew unjustified inferences from Gerstner’s medication gap and job search. First, the ALJ overstated findings" }, { "docid": "19534049", "title": "", "text": "his failure to explain why he gave considerable weight to the opinions of the agency physicians that Lambert could perform sedentary work. It is puzzling why the ALJ would credit these opinions while discounting Dr. Paul's as an improper legal conclusion. See Bjornson , 671 F.3d at 648. That inconsistency aside, an ALJ must weigh medical opinions by applying the regulatory factors in 20 C.F.R. § 404.1527(c)(2). The reviewing consultants rendered their opinions before Lambert was treated by the pain specialist, before Dr. Paul fused Lambert's sacroiliac joints in failed attempts to alleviate his pain, before Dr. Paul opined that Lambert's pain had worsened and his limitations had degraded since 2011, and before the physical therapist found Lambert's functional abilities had diminished. ALJs may not rely on outdated opinions of agency consultants \"if later evidence containing new, significant medical diagnoses reasonably could have changed the reviewing physician's opinion.\" Moreno v. Berryhill , 882 F.3d 722, 728 (7th Cir. 2018). The government responds that any error in weighing Dr. Paul's opinions is harmless. An error is harmless only if we are convinced that the ALJ would reach the same result on remand. See McKinzey v. Astrue , 641 F.3d 884, 892 (7th Cir. 2011). Here the outcome is not foreordained; at the very least, the ALJ formulated an RFC without including Dr. Paul's most recent opinions. The government also argues that under the Social Security Act, Lambert needed to prove that he was unable to work for an identifiable, continuous 12-month period. This argument misreads the statute. The Act does not specify how long a claimant must be unable to engage in substantial gainful activity. Instead it is the claimant's \"medically determinable physical or mental impairment\" that must have \"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). Lambert's impairment from degenerative disc disease continued from at least January 2013 through August 2014, well over a year. The government's reading of the Act would preclude benefits for anyone with an impairment that causes 12 months of bad days with" }, { "docid": "10145004", "title": "", "text": "to the extent that he “generally affirmed” Dr. Brister, but she gave little weight to his finding that Culli-nan had moderate difficulties in social functioning.because, the ALJ said, it was not consistent with treatment records and Cullman’s activities. Regarding Cullinan’s physical impairments, the ALJ gave some weight to the opinions of the two state-agency physicians who had physically evaluated Cullinan; the ALJ accepted their assessment that Culli-nan had only nonsevere physical impairments. But the ALJ gave controlling weight to Dr. Monterubianesi’s opinion about Cullinan’s inability to lift heavy objects, so she limited Cullinan’s residual functional capacity to light exertional work. The Appeals Council denied review, making the ALj’s decision the final decision of the Commissioner. See Ghiselli v. Colvin, 837 F.3d 771, 776 (7th Cir. 2016). Cullinan sought judicial review, and a magistrate judge, presiding by consent, see 28 U.S.C. § 636(c), affirmed the decision of the Commissioner. We review the magistrate judge’s decision de novo and assess whether the ALJ’s decision is supported by substantial evidence in the record. Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017). II. Analysis Cullinan primarily argues that the ALJ erred by discrediting her testimony about the limitations caused by .her impairments and the opinion of her treating psychologist, Dr. Canzona, and instead giving great weight to the Agency’s nonexamining doctors. She challenges the conclusion that both her testimony and Dr. Canzona’s opinion were inconsistent with Dr. Canzo-na’s notes, which, the ALJ said, showed she was “very active.” We will overturn an ALJ’s decision to discredit a claimant’s alleged symptoms only if the decision is “patently wrong,” meaning it lacks explanation or support. Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014). A credibility determination lacks support, when it relies on inferences that are not logically based on specific findings and evidence. Id. Here the ALJ’s decision to discredit Cullinan and Dr, Canzona is unsupported by the record because the ALJ’s examples of Cullinan’s daily activities and social interactions do not remotely describe a “very active” lifestyle. In Murphy we decided that the ALJ erred in concluding that the claimant’s vacation" }, { "docid": "4090636", "title": "", "text": "§ 404.1529(e)(3)(v), (vi) (factors relevant to severity of pain include treatment for pain relief and other measures to relieve pain, like lying flat on the back). Nor did the ALJ consider the conclusion of Stark’s treating physician that she always will have neuropathic leg pain, which could account for her complaints of pain, or her degenerative disc disease, which could account for her pain progressively worsening. Even if the ALJ thought that the objective evidence was insufficient, pain alone can be disabling, Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir.2004), and Stark testified that she is limited by her pain. Testimony of severe pain cannot be disregarded simply because it is not supported by objective medical evidence. See Hall v. Colvin, 778 F.3d 688, 691 (7th Cir.2015); Pierce v. Colvin, 739 F.3d 1046, 1049-50 (7th Cir.2014) (“Pain can be severe to the point of being disabling even though no physical cause can be identified ...”). Stark’s persistence in struggling through household chores despite her pain does not mean, as the ALJ extrapolated, that she can manage the requirements of the work-place. See Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir.2010); see also Engstrand v. Colvin, 788 F.3d 655, 661 (7th Cir.2015). We have repeatedly rejected that reasoning as “naive,” see Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir.2013), because a person performing chores has flexibility in scheduling, can receive help, and is not held to a minimum standard of performance, unlike an employee. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012). And Stark’s need for frequent breaks is not consistent with light work activity, also contrary to the ALJ’s finding. See, e.g., Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir.2013) (criticizing ALJ’s reliance on claimant’s ability to perform household tasks because inability to get through the day without lying down every hour does not indicate ability to work even sedentary job). Stark testified that she presently requires long breaks between tasks, uses extra time to complete short tasks, and experiences immobilizing pain for a full day after holding her 7-pound grandson. But the ALJ" }, { "docid": "17083868", "title": "", "text": "adhere to the “treating physician rule.” A treating physician’s opinion that is consistent with the record is generally entitled to “controlling weight.” 20 C.F.R. § 404.1527(d)(2); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.2010). An ALJ who chooses to reject a treating physician’s opinion must provide a sound explanation for the rejection. 20 C.F.R. § 404.1527(d)(2); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007). Jelinek argues, and we agree, that the ALJ did not explain satisfactorily in the written decision his rejection of Dr. Radzeviciene’s opinion. When an ALJ decides to favor another medical professional’s opinion over that of a treating physician, the ALJ must provide an account of what value the treating physician’s opinion merits. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir.2011). The ALJ’s decision did not meet these requirements for rejecting Dr. Radzeviciene’s opinion. The ALJ’s decision does not allow us to conclude that he weighed the merits of Dr. Radzeviciene’s opinion, let alone engaged in the careful analysis required by the regulations and case law. Dr. Radzeviciene’s assessment, as reflected in the questionnaire he completed in January 2008, addressed Jelinek’s symptoms and her residual functional capacity and thus was highly relevant to several parts of the ALJ’s analysis. But in a section devoted to determining whether Jelinek’s mental impairments met or medically equaled a listed impairment under the adult five-step analysis, the ALJ limited his comments to the following: It is noted that ... Dr. Radzeviciene opined in January 2008 that the claimant has fair (seriously limited) ability to maintain attention for two-hour periods, sustain an ordinary routine without special supervision; complete a normal workday and work-week; work in coordination with others without being unduly distracted; understand, remember, and carry out detailed instructions; set realistic goals and make plans independently of others; and use public transportation; poor/no ability to maintain regular attendance and be punctual; perform at a consistent pace without an unreasonable number and length of rest periods; and deal with normal work stresses. However, the undersigned points out that the claimant" }, { "docid": "19534042", "title": "", "text": "Paul's July and August 2014 opinions that his pain had worsened to the point that he could not tolerate even sedentary work. Because Dr. Paul is a treating physician, his opinion on the nature and severity of Lambert's medical condition is entitled to controlling weight if it is well supported by medical findings and consistent with other record evidence. See 20 C.F.R. §§ 404.1520c(a) (2017) ; Gerstner v. Berryhill , 879 F.3d 257, 261 (7th Cir. 2018) (noting that this treating-physician rule applies only to claims filed before March 27, 2017). Lambert identifies multiple flaws in the ALJ's decision. He argues that the ALJ overlooked medical evidence substantiating Dr. Paul's most recent opinions, wrongly found the opinions inconsistent with Dr. Paul's earlier opinion from March 2014, and failed to consider the relevant factors for evaluating medical source opinions set forth in 20 C.F.R. § 404.1527(c). He also challenges the ALJ's decision to discount Dr. Paul's opinion as a legal conclusion outside a doctor's role. Finally, Lambert asserts that the ALJ failed to explain why Dr. Paul's opinions were entitled to less weight than those of the agency physicians rendered before some of the key medical evidence was compiled. We agree that the ALJ's reasons for giving little weight to Dr. Paul's most recent opinions are inadequate to \"build an accurate and logical bridge between the evidence and the result.\" Beardsley v. Colvin , 758 F.3d 834, 837 (7th Cir. 2014). First, the ALJ said there was no objective basis for Dr. Paul's opinion about Lambert's symptoms as of July 2014 because \"x-rays revealed good fusion and good position of the [sacroiliac] joint.\" But no medical source opined that the imaging results were inconsistent with Lambert's complaints of disabling pain. Indeed, throughout Lambert's treatment history, medical imaging ruled out specific, objective causes of his ongoing pain-yet his doctors performed surgeries, prescribed powerful pain medications, and recommended long-term pain-management techniques for his suite of chronic back problems. ALJs must rely on expert opinions instead of determining the significance of particular medical findings themselves. Meuser v. Colvin , 838 F.3d 905, 911 (7th" } ]

[ { "docid": "4334844", "title": "", "text": "n. 8 (1st Cir.2000) (“State courts, as courts of general jurisdiction, are free to employ any enforcement mechanisms warranted by state, law, even where those mechanisms allow liability to be established directly against a third party to the original action. However, the limited nature of federal jurisdiction in general confines the scope of enforcement jurisdiction as well. The incorporation of state enforcement procedures through Rule 69 is not alone sufficient to create federal jurisdiction over such enforcement proceedings. The fact that Rule 69(a) may (by way of state law) afford procedural mechanisms for enforcing an existing federal judgment against a third party not otherwise liable does not obviate the need to establish the jurisdiction of the federal court over the supplemental proceeding.”) Where a federal court has independent grounds for jurisdiction, it can enforce a judgment using any of the procedures afforded under state law. Fed.R.Civ.P. 69(a). There is no reason to doubt that Passa-lacqua remains good law. Indeed, its interpretation of New York law is binding on this Court. The plaintiffs alter ego claims are well within the applicable twenty-year statute of limitations of N.Y. C.P.L.R. § 211(b). To the extent that the defendants contend that the claims for relief based on alter ego liability-namely, the first, second, and seventh claims for relief-should be dismissed as time-barred, the motion is denied. B. The defendants contend alternatively that, even if the plaintiffs first claim for relief is not time barred, it should be dismissed for failure to state a claim. In the first claim for relief, the plaintiff alleges that Reich and Jossem are liable for the judgment against IDTS because they are the alleged alter egos of IDTS. In general, New York courts will pierce the corporate veil “whenever necessary to prevent fraud or achieve equity.” Walkovszky v. Carlton, 18 N.Y.2d 414, 276 N.Y.S.2d 585, 223 N.E.2d 6, 7 (1966) (internal quotation marks and citation omitted). No definitive rule governs when courts will pierce the corporate veil, because the decision “in a given instance will necessarily depend on the attendant facts and equities.” Morris v. New York State Dep’t" } ]

[ { "docid": "4835964", "title": "", "text": "90 Cal.Rptr.3d 589). Plaintiff cites pre-Iqbal and Twombly cases for the proposition that a plaintiff need only allege the elements of alter ego liability without supporting the allegations with facts. (Dkt. No. 21 at 15 (citing Smith v. Simmons, No. 1:05-CV-01187-OWW-GSA, 2008 WL 744709, at *11 (E.D.Cal. Mar. 18, 2008) (referencing “notice pleading” and contending that Plaintiffs allegations of alter ego liability even absent factual descriptions are sufficient under Rule 12(b)(6)).) After Iqbal and Twombly, however, a complaint must allege the elements of alter ego along with facts that support each element. See High, 2012 WL 3025922, at *4-6; Square 1 Bank, 2014 WL 4181907, at *2 (“[A] plaintiff must allege specifically both the elements of alter ego liability, as well as facts supporting each [element].” (citation omitted)); Mindlab Media, LLC v. LWRC Int’Z LLC, No. CV 11-3405 CAS (FEMX), 2012 WL 386695, at *4 (C.D.Cal. Feb. 6, 2012) (finding complaint failed to state a claim for alter ego where it contained only allegations that defendants acted as “the alter egos, agents, servants, and joint ventures [sic] of each other ... with the knowledge ... and approval of the other Defendants” to be “legal conclusions [] unsupported by any facts”). Some courts have held that the complaint need only plead at least two factors in support of a unity of interest to satisfy this element. See Daewoo Elecs. Am., Inc. v. Opta Corp., No. C 13-1247 JSW, 2013 WL 3877596, at *5 (N.D.Cal. July 25, 2013) (citation omitted); see also Pac. Mar. Freight, Inc., 2010 WL 3339432, at *6 (“The identification of the elements of alter-ego liability plus two or three factors has been held sufficient to defeat a 12(b)(6) motion to dismiss.” (citation omitted)). With respect to the unity of interest element, Plaintiff points to allegations that Screen Gems-EMI and all EMI affiliates have all been doing business collectively as “EMI Music Publishing” (Dkt. No. 1-1 ¶ 11); that the foreign affiliates are all “wholly owned and/or controlled subsidiaries of EMI Music Publishing” {id. ¶ 25); that the foreign affiliates use the name “EMI Music Publishing” with the name" }, { "docid": "6364495", "title": "", "text": "Jewett are alter-egos of MSI, it could establish jurisdiction only by presenting evidence of MSI-Pro and Jewett’s own individual contacts with the District. See Shapiro, 24 F.Supp.2d at 70. But Sunmatch has not alleged that MSI-Pro and Jewett have any contacts with the District. Consequently, if Sunmatch does not prove that MSI-Pro and Jewett are MSI’s alter egos, its counterclaims may be dismissed as to MSI-Pro and Jewett for lack of personal jurisdiction and for failure to state a claim. 2. Deciding Personal Jurisdiction on a Motion to Dismiss To survive a motion to dismiss for lack of personal jurisdiction, the nonmovant need only make out a prima facie case that such jurisdiction exists. See Crane v. New York Zoological Society, 894 F.2d 454, 458 (D.C.Cir.1990). For purposes of this motion to dismiss, Sun-match’s well-pleaded allegations are regarded as true, see Gray v. Bell, 712 F.2d 490, 493 n. 2 (D.C.Cir.1983) and it is afforded the benefit of all inferences reasonably derived from the facts alleged. See United States v. BCCI Holdings, 980 F.Supp. 21, 26 (D.D.C.1997) (citation omitted). Dismissal is proper only if “it appears beyond doubt that the [counter-claimant] can prove no set of facts in support of his claim which would entitle him to relief.” Kenneda v. United States, 880 F.2d 1439, 1442 (D.C.Cir.1989). “Conclusory allegations or legal conclusions masquerading as factual conclusions,” however, “will not suffice to prevent a motion to dismiss.” 2 Moore’s Federal Practice, s. 12.34[l][b] at 12-61 to 12-62. 3. Determining Whether Jewett is MSI’s Alter-Ego i. Standard for Determining Whether Subsidiary is Alter-Ego of Parent Corporation Whether one corporation is the alter ego of another is a question of law to be decided by the court. See Joyce v. Silveri Tile Co., 27 F.Supp.2d 251, 256 (D.D.C.1998) (citation omitted). The courts have applied four tests to determine whether a parent corporation is liable for the acts of its subsidiary: (1) the “agency” test, which asks whether the parent exercises a significant degree of control over the subsidiary’s decisionmaking; (2) the “alter ego” test, which permits the court to pierce the corporate veil" }, { "docid": "4835962", "title": "", "text": "earned and actually received’ by it,” which, based on the single enterprise allegation, includes sums that the foreign sub-publishers received, as well.” (Dkt. No. 21 at 14.) Thus, the impropriety of Screen Gems-EMI’s conduct — and therefore the sufficiency of the FAC — rises and falls on whether Plaintiff has adequately alleged that Defendants and their foreign affiliates are alter egos of each other and are operating as a single enterprise. In determining whether a complaint has adequately pleaded alter ego liability, courts start from the premise that “[a]lter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice!.]”. Moreland v. Ad Optimizers, LLC, No. C13-00216 PSG, 2013 WL 1410138, at *2 (N.D.Cal. Apr. 8, 2013) (citation omitted). To invoke the alter ego doctrine,- a plaintiff must allege facts sufficient to support a plausible claim that: (1) there is such a unity of interest and ownership that the separate personalities of the two corporations no longer exist; and (2) if the acts are treated as those of only one of the corporations, an inequitable result will follow. In re Schwarzkopf, 626 F.3d 1032, 1038 (9th Cir.2010) (citation omitted); Harris, 328 F.3d at 1134. As described above in the context of determining personal jurisdiction, in assessing whether there is a unity of interest, courts consider “the commingling of funds and other assets of the entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership of the entities, use of the same offices and employees, use of one as a mere shell or conduit for the affairs of the other, inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers.” Sandoval, 34 F.Supp.3d at 1040. “Common ownership alone is insufficient to disregard the corporate form.” Id. Relevant here, the alter ego doctrine may apply between a parent and a subsidiary or, “under the single enterprise rule, ... between sister or affiliated companies.” Wehlage v. EmpRes Healthcare, Inc., 791 F.Supp.2d 774, 782 (N.D.Cal.2011) (citing Troyk, 171 Cal.App.4th at 1342," }, { "docid": "4835963", "title": "", "text": "one of the corporations, an inequitable result will follow. In re Schwarzkopf, 626 F.3d 1032, 1038 (9th Cir.2010) (citation omitted); Harris, 328 F.3d at 1134. As described above in the context of determining personal jurisdiction, in assessing whether there is a unity of interest, courts consider “the commingling of funds and other assets of the entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership of the entities, use of the same offices and employees, use of one as a mere shell or conduit for the affairs of the other, inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers.” Sandoval, 34 F.Supp.3d at 1040. “Common ownership alone is insufficient to disregard the corporate form.” Id. Relevant here, the alter ego doctrine may apply between a parent and a subsidiary or, “under the single enterprise rule, ... between sister or affiliated companies.” Wehlage v. EmpRes Healthcare, Inc., 791 F.Supp.2d 774, 782 (N.D.Cal.2011) (citing Troyk, 171 Cal.App.4th at 1342, 90 Cal.Rptr.3d 589). Plaintiff cites pre-Iqbal and Twombly cases for the proposition that a plaintiff need only allege the elements of alter ego liability without supporting the allegations with facts. (Dkt. No. 21 at 15 (citing Smith v. Simmons, No. 1:05-CV-01187-OWW-GSA, 2008 WL 744709, at *11 (E.D.Cal. Mar. 18, 2008) (referencing “notice pleading” and contending that Plaintiffs allegations of alter ego liability even absent factual descriptions are sufficient under Rule 12(b)(6)).) After Iqbal and Twombly, however, a complaint must allege the elements of alter ego along with facts that support each element. See High, 2012 WL 3025922, at *4-6; Square 1 Bank, 2014 WL 4181907, at *2 (“[A] plaintiff must allege specifically both the elements of alter ego liability, as well as facts supporting each [element].” (citation omitted)); Mindlab Media, LLC v. LWRC Int’Z LLC, No. CV 11-3405 CAS (FEMX), 2012 WL 386695, at *4 (C.D.Cal. Feb. 6, 2012) (finding complaint failed to state a claim for alter ego where it contained only allegations that defendants acted as “the alter egos, agents, servants, and joint" }, { "docid": "9179365", "title": "", "text": "highest court would decide.\"); see also Erie R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Accordingly, MidCap's motion to dismiss because the claim does not exist is DENIED . 6. Veil Piercing/Alter Ego The court now turns to the plaintiffs' veil piercing theories. First, the court notes that MidCap asserts in its reply in support of its motion to dismiss that the plaintiffs concede in their response that their fraud claims only include Graebel, Peterson, and Gomez. See Dkt. 58. However, the second amended complaint asserts a fraud claim against all the defendants and notes that MidCap is liable because Graebel acted as MidCap's agent and also under alter ego and veil-piercing theories. Dkt. 104 at 37. Thus, while the direct fraud claims may include only Graebel, Peterson, and Gomez, there is still an allegation that MidCap is liable for the fraud. MidCap requests that the court dismiss these imputed liability claims. It contends that the plaintiffs' veil piercing and alter ego fraud and breach of contract claims cannot survive because (1) the plaintiffs do not meet Rule 9(b)'s heightened pleading standard for the fraud claim; and (2) a contract claimant may only pierce the veil if the defendant has committed actual fraud against the plaintiff for the defendant's personal benefit. Dkt. 42 at 23-24. The plaintiffs argue that their complaint contains sufficient allegations to support their alter ego theory to pierce the corporate veil. Dkt. 47 at 53-54. In reply, MidCap relies on Valdes , which MidCap argues the plaintiffs cannot meaningfully distinguish. Dkt. 58 at 9. While the court found, supra , that the evidence submitted did not support an alter ego theory of jurisdiction, relying heavily on Valdes , the court must take the allegations in the second amended complaint as true when considering a motion to dismiss for failure to state a claim. Taking these allegations as true, the plaintiffs have pled enough facts to meet the Rule 9(b) pleading standard for their alter ego fraud claim, and they have sufficiently alleged that MidCap committed fraud against the plaintiffs" }, { "docid": "23504900", "title": "", "text": "two corporations were the Lamas’ agents; the court refused to address the claim. Rule 8 sets the standard for pleadings. It requires the plaintiff to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(d)(2) permits the plaintiff to “set out 2 or more statements of a claim ... alternatively or hypothetically, either in a single count or defense or in separate ones.” If the evidence at trial brings to light a new theory of liability, the plaintiff may move the court to amend the pleadings if doing so would not prejudice the defendants. Fed.R.Civ.P. 15(b). We agree with the district court that Molinos did not raise an agency theory in any of its court filings up until trial. The amended complaint only asserts the alter ego theory to hold the Lamas liable for Chipstek’s and Expertek’s actions. See Am. Compl. ¶ 21 (“At all material times to this Complaint, Molinos and the Lamas were well aware that these entities were in effect mere instrumentalities, alter egos, of the Lamas .... ” (emphasis added)); id. ¶ 56 (“The Lamas, as herein described, utilizing several of their wholly controlled or wholly owned entities as their alter egos issued and caused to be issued to Molinos four checks totaling U.S. $636,596.00.” (emphasis added)). Nowhere does it allege an agency relationship. In opposing the Lamas’ motion to dismiss, Molinos asserted the alter ego argument exclusively; it did not argue that the corporations were the Lamas’ agents. See Pl.’s Mem. Opp’n to Def.’s Mot. to Dismiss 18 (“Defendants, who were personally liable to Plaintiff under the Foreign Currency Exchange Agreement, used Chipstek and Expertek as their alter egos.”). In fact, the district court explicitly credited the alter ego theory in denying the motion to dismiss. Order Defs.’ Mot. to Dismiss 9. Furthermore, the parties’ Joint Pretrial Stipulation continued to assert — contrary to Molinos’s argument to this court — an alter ego theory exclusively. In its statement of the case, Molinos states: “At no time during the numerous meetings and conversations held by" }, { "docid": "19339722", "title": "", "text": "and Provident. It alleges simply that UnumProvident is a Maine corporation with its principal place of business in Maine that transacts business in California. The only other substantive allegation in the complaint that could even be read as mentioning UnumProvident is found in paragraph 9, which reads, in pertinent part: “UNUM’s denial of the plaintiffs disability benefits claim constitutes a breach of the insurance contract between Provident Life and the plaintiff.” While the caption of each cause of action is directed against UnumProvident as well as Provident, none of the substantive allegations mentions UnumProvident. More pertinent for purposes of the current discussion, none contains any reference to UnumProvident being the alter ego of Provident. None alleges that Un-umProvident treats the assets of Provident as its own, that it commingles funds with Provident, that it controls the finances of Provident, that it shares officers or directors with Provident, that Provident is undercapitalized, or that the separateness of the subsidiary has ceased. Without such allegations, the issue is not adequately raised, and UnumProvident was not put on notice that this was a theory against which it should be prepared to defend. See, e.g., Hockey v. Medhekar, 30 F.Supp.2d 1209, 1211, n. 1 (N.D.Cal.1998) (dismissing a securities fraud claim against individual defendants on the basis that an allegation that corporations were alter egos for those defendants was insufficient to state a claim); Hokama v. E.F. Hutton & Company, Inc., 566 F.Supp. 636, 647 (C.D.Cal.1983) (holding that plaintiff had failed to state a claim against an individual defendant because the complaint contained only a eonclusory allegation of alter ego status without alleging the elements of the doctrine). Compare Federal Reserve Bank of San Francisco v. HK Systems, No. 95 CV 4700(SJ), 1997 WL 227955, * 5 (N.D.Cal. May 1, 1997) (finding, on a Rule 12(b)(6) motion, that the allegations of the complaint were sufficient to state a claim based on alter ego liability, because they alleged that the defendant parent corporation “dominated and controlled” the subsidiary “to such an extent that the individuality and separateness of the subsidiary had ceased,” that the parent “disregarded" }, { "docid": "6649918", "title": "", "text": "alter ego allegations are too conclusory to survive a motion to dismiss. “Conclusory allegations of ‘alter ego’ status are insufficient to state a claim. Rather, a plaintiff must allege specifically both of the elements of alter ego liability, as well as facts supporting each.” Neilson v. Union Bank of Cal,, N.A., 290 F.Supp.2d 1101, 1116 (C.D.Cal.2003). Not only are Plaintiffs’ allegations “on information and belief’ about a unity of interest between all Defendants conclusory, but Plaintiffs have also not adequately alleged that inequity would result from respecting the corporate form of Defendants. Plaintiffs state conclusorily that “an inequity would result if the corporations were not viewed as alter egos of each other and the [individual Ali Defendants], including the inability on the part of the Corporate Defendants to satisfy a potential judgment in this case which seeks wages and derivative penalties.” (FAC ¶ 9d.) California courts have rejected, however, “the view that the potential difficulty a plaintiff faces collecting a judgment is an inequitable result that warrants application of the alter ego doctrine.” Neilson, 290 F.Supp.2d 1101 at 1117; see also Sonora Diamond Corp. v. Sup.Ct., 83 Cal.App.4th 523, 539, 99 Cal.Rptr.2d 824 (2000) (“The alter ego doctrine does not guard every unsatisfied creditor of a corporation but instead affords protection where some conduct amounting to bad faith makes it inequitable for the corporate owner to hide behind the corporate form. Difficulty in enforcing a judgment or collecting a debt does not satisfy this standard.”). Plaintiffs have also not adequately alleged that they have standing to sue the individual Ali Defendants or other corporate Defendants other than Autowest and Ml Collision Care Centers under a common law employer theory. Plaintiffs assert that under California law, an individual may be a joint employer if he engages another to work, controls employee working conditions, or knowingly permits the person to work without proper compensation while having the power to prevent such work. However, not only do Plaintiffs not allege facts showing that the individual Ali Defendants acted as joint employers so defined, but the case cited by Plaintiffs refers not to a" }, { "docid": "11376717", "title": "", "text": "Plaintiff argues that the Bergesen Case Defendants are collaterally estopped from denying their alter ego status. Collateral estoppel is unnecessary here. Considering the court’s findings in Bergesen together with the materials submitted by Plaintiff in support of this motion, Plaintiff has established a prima facie case that the Bergesen Case Defendants are alter egos of Backstrom and Lindholm. Defendant’s motion to dismiss is denied with respect to the Bergesen Case Defendants. Remaining Non-Resident Defendants Defendants The Piney Valley Ranches Trust, EMD Limited Liability Co., Eagle Mountain Development Inc., Almendro Shipping Co., Magnolio Shipping Corp., Naranjo Shipping Corp., and Nogal Shipping Co. are all corporations which Plaintiff alleges are under the control of Defendants Backstrom and Lindholm. The first three (collectively referred to as the “Western Land Defendants”) are real estate corporations that are allegedly controlled by Magnus Lindholm. The four shipping companies (collectively referred to as the “Shipping Companies”) are alleged to be subsidiaries of Lexmar España, S.A. which is one of the Bergesen Case Defendants. Plaintiff has little evidence to support its allegations that these remaining Defendants are alter egos. The only evidence offered to show that the Western Land Defendants are alter egos is that these companies made significant land purchases in Colorado at the same time that unsecured loans from Bergesen Defendant Starlux Corp. and its subsidiaries increased dramatically. As to the Shipping Companies, Plaintiff can only point to their status as subsidiaries of one of the Bergesen Case Defendants that was found to be an alter ego. Such limited circumstantial evidence is insufficient to establish a prima facie case that the remaining Non-Resident Defendants are alter egos. However, taken in light of the evidence relating to the status of other entities controlled by Backstrom and Lindholm, it is sufficient to convince us that we should postpone our decision regarding the remaining Non-Resident Defendants to allow Plaintiff to undertake discovery on the alter ego issue. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1351 (1990). Defendants’ motion to dismiss is denied with respect to the Bergesen Case Defendants. With regard to" }, { "docid": "6940306", "title": "", "text": "is necessary to enable defendants to prepare a response. B. The Alter Ego Doctrine The alter ego doctrine is generally applied to disregard the corporate entity and hold an individual liable for the corporation’s obligations where equity so requires. See e.g., Norman v. Murray First Thrift & Loan Co., 596 P.2d 1028 (Utah 1979) (stating alter ego elements); Dockstader v. Walker, 29 Utah 2d 370, 373, 510 P.2d 526 (1973) (stating usual application of the doctrine). However, contrary to defendants’ assertions, the equitable alter ego doctrine may be applied in the “reverse” sense to disregard the corporation to reach corporate assets for the obligations of an individual. See, e.g., In re Continental Mortgage Investors, 5 B.R. 773, 795 (D.C.D.Mass.1980); Honeywell, Inc. v. Arnold Construction Co., 134 Ariz. 153, 159, 654 P.2d 301 (App.1982); Gude v. City of Lakewood, 636 P.2d 691 (Colo. 1981); Am Fac Mechanical Supply Co. v. Federer, 645 P.2d 73 (Wyo.1982). Defendants’ alter ego argument is therefore without merit. V. Order For the reasons set forth herein, IT IS HEREBY ORDERED that: 1. Defendants’ motion to dismiss claims 1 and 12 is granted without prejudice; 2. Defendants’ motion to dismiss claims 2-8 and 13-19 is denied; 3. Defendants’ motion to dismiss claim 22 is granted without prejudice as to the aiding and abetting allegation and denied as to the alter ego allegation; 4. Defendants’ alternative motion for a more definite statement is denied; and 5. Plaintiffs are granted leave to amend claims 1, 12 and 22 of their complaint to conform with this decision. . Plaintiffs’ complaint was filed on December 9, 1983. . Of course the same required specificity would also apply to any amendment to the first cause of action. . In any event courts have applied fraud statutes of limitations even in the face of contentions that the particular 10(b) action was not grounded in fraud. See, e.g. Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90, 103-4 (10th Cir. 1971), cert. den., 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1972). . In Richards v. Mileski, 662 F.2d 65 (D.C.Cir. 1981), the" }, { "docid": "6215506", "title": "", "text": "policy considerations for employing a flexible alter ego test in the ERISA context, and the interlocked relationship of the entities in this case,” id. at 289, the fact that the entities have existed simultaneously and that plaintiffs have not alleged (and do not contend) that Realty and Concrete engaged in transactions to evade or avoid withdrawal liability is not fatal tb their alter ego allegations. Therefore, the Court concludes that the proposed amendment adequately alleges that the companies are alter egos of each other. See Trs. of Local 7 Tile Indus. Welfare Fund v. Amarko Marble & Granite Co., Inc., No. 13-CV-2779 (FB)(CLP), 2014 WL 1622098, at *6 (E.D.N.Y. Apr. 22, 2014) (adopting Report & Recommendation) .(finding that plaintiff adequately alleged elements necessary to pierce corporate veil under alter ego theory where plaintiff alleged that defendants shared an address, identical management, ownership, equipment, customers, business purpose, and supervision, intermingled financial books and records, and failed to deal with each other at arm’s length). In sum, plaintiffs’ single employer and alter ego allegátions would survive a motion to dismiss pursuant to Rule 12(b)(6). Therefore, the Court concludes that it would not be futile to amend the complaint to include these allegations, and no other grounds exist to deny leave to amend. Accordingly, the Court grants the motion to amend to add these theories of liability. 2. Single Control Group Plaintiffs also argue that the amendment adequately alleges that Concrete and Realty ' are liable as members of Trucking’s control group. Trucking argues that the amendment is futile because plaintiffs cannot show the entities are under “common control,” because, although Spevack owns all of Trucking, he only owns 46 percent of Concrete and 66 percent of Realty, thus “failing to meet the threshold of a parent-subsidiary group of trades or business under common control.” (Opp’n, at 7.) As the Second Circuit has recognized, “a showing that multiple corporations are under ‘common control,’ within the meaning of specified Treasury regulations 26 C.F.R. §§ 1.414(c)-l through 1.414(e)&emdash;5), will suffice to make each entity in that ‘controlled group’ responsible for the withdrawal liability of any" }, { "docid": "22959173", "title": "", "text": "that the district court was “plainly wrong” in denying discovery. III. In its complaint, the government alleged that IMB is SAB’s alter ego. At the March 30, 2000 hearing on SAB’s and IMB’s motions to dismiss, the district court dismissed the government’s case against IMB “for failure adequately to plead allegations of alter ego liability and for lack of personal jurisdiction.” Swiss III, 116 F.Supp.2d at 219. On appeal, the government challenges this ruling. In the alternative, it contends that it should have been allowed to take discovery about IMB’s relationship with SAB, arguing, as it did below, that discovery is needed because “the defendants exclusively hold the critical information that would explain the events surrounding the disappearance of the funds.” In Stuiss II, IMB argued that it could not be held hable for SAB’s alleged misconduct because it was not SAB’s alter ego. We said that this argument was “premature” because it involved “reaching the merits of a case,” which, according to Supreme Court precedent, “should await a determination of the district court’s jurisdiction over IMB.” 191 F.3d at 46. We noted “[t]he lack of a developed record and the fact that the district court has not yet expressed its views on this motion” as added reason to decline to address IMB’s argument on the merits. Id. The jurisdictional question over IMB can now be resolved, in light of this Court’s decision affirming the lack of personal jurisdiction over SAB. The government concedes that personal jurisdiction extends to IMB only if (1) the government makes a prima facie case for jurisdiction over SAB and if (2) the government can establish alter ego liability. See Pleasant St. I, 960 F.2d at 1091 (“if [subsidiary] PSC’s contacts can be attributed to [parent company] ITD, then the jurisdictional hurdle can be vaulted”); Donatelli, 893 F.2d at 466 (“Since the essence of personal jurisdiction is to bring responsible parties before the court, a corporation which is actually responsible for its subsidiary’s decision to undertake instate activities should, in all fairness, be within the state court’s jurisdictional reach.”). Since the government was unable to" }, { "docid": "20610602", "title": "", "text": "State Board of Equalization, 24 Cal.App.4th 382, 391, 29 Cal.Rptr.2d 407 (Ct.App.1994); Laird v. Capital Cities/ABC, Inc., 68 Cal.App.4th 727, 741, 80 Cal.Rptr.2d 454 (Ct.App.1998). The alter ego doctrine is one exception to the rule where a parent corporation will be found liable for the actions of its subsidiary when there is (1) such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that if the acts are treated as those of the corporation alone, an inequitable result will follow. Automotriz Del Golfo De California v. Resnick, 47 Cal.2d 792, 796, 306 P.2d 1 (1957); United States v. Healthwin-Midtown Convalescent, 511 F.Supp. 416, 418 (C.D.Cal.1981) affirmed 685 F.2d 448 (9th Cir.1982). Another exception to the general rule is when the subsidiary is the agent of the parent, which requires a showing that the parent so controls the subsidiary as to cause the subsidiary to be become merely the instrumentality of the parent. Laird, 68 Cal. App.4th at 741, 80 Cal.Rptr.2d 454. A parent corporation contributing funds to a subsidiary is not enough to find alter ego or agency liability. Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 539, 541, 99 Cal.Rptr.2d 824 (Ct.App. 2000). Here, Plaintiff alleges that Bank of America “is responsible and liable for the actions of Countrywide during the times [pleaded] in the Complaint.” (Complaint ¶ 3.) Reading the Complaint and interpreting ambiguities in favor of the pleadings, Plaintiff pleads no facts beyond the purchase of Countrywide by Bank of America. Without more, Plaintiffs allegations are limited to claiming a financial link between the parent and subsidiary. Thus, Plaintiff has failed to plead enough facts to maintain a claim against Bank of America. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss Plaintiffs claim against Bank of America. V. CONCLUSION The Court GRANTS Defendants’ Motion to Dismiss the Complaint with leave to amend. On or before July 29, 2009, Plaintiff shall file his Amended Complaint as a sep arate docket entry. The Amended Complaint shall be consistent with the directions of this Order. Failure to timely" }, { "docid": "20495879", "title": "", "text": "decide. In re American Honda Motor Co., Inc. Dealerships Relations Litigation, 941 F.Supp. 528, 551 (D.Md.1996). Courts in Maryland, nonetheless, have dismissed alter ego claims under Rule 12(b)(6). In American Honda, the court held that allegations of the two entities using consolidated financial statements and maintaining interlocking directorates, even if taken as true, would be insufficient to justify piercing the corporate veil. Without any other suggestions that the alter ego was incorporated for fraudulent purpose, or inadequately capitalized, the court dismissed the claim. Id. Finishes correctly alleges that Dart has not provided sufficient factual allegations to maintain a claim against Finishes as an alter ego of RaceRedi. In fact, Dart fails to mention any of the factors required by the court to apply the veil-piercing doctrine. Nevertheless, while Dart premised its claims against Finishes primarily under an alter-ego theory, Dart also alleged in the Counterclaim that both “Finishes and RaceRedi contracted with Dart for the 2008 NHRA race season” and that both parties breached the contract. Counterclaim ¶¶ 13, 23. In the event that there is evidence that Finishes was a direct party to the contract, alter-ego liability would be immaterial. Accordingly, this Court will allow the Third-Party claim against Finishes to go forward. IV. CONCLUSION For the reasons stated above, RaceRedi and Finishes’ motion to dismiss will be granted in part and denied in part. Dart’s claim for attorney’s fees in Count One will be dismissed. Otherwise, Dart’s claims will be permitted to go forward. A separate order will issue. . The parties did not request consolidation of the two cases. It appears that no further proceedings have occurred in the United States District Court for the Eastern District of Michigan, and RaceRedi’s transferred action remains open. . Dart’s Counterclaim does not include a Count II. . RaceRedi does not move to dismiss any other part of Dart’s breach of contract claim in Count I. . Dart, however, never distinguishes between contract and tort claims. . The Maryland Court of Special Appeals did not fully explain why it turned to the choice-of-law for contract actions to determine the choice-of-law" }, { "docid": "19339723", "title": "", "text": "notice that this was a theory against which it should be prepared to defend. See, e.g., Hockey v. Medhekar, 30 F.Supp.2d 1209, 1211, n. 1 (N.D.Cal.1998) (dismissing a securities fraud claim against individual defendants on the basis that an allegation that corporations were alter egos for those defendants was insufficient to state a claim); Hokama v. E.F. Hutton & Company, Inc., 566 F.Supp. 636, 647 (C.D.Cal.1983) (holding that plaintiff had failed to state a claim against an individual defendant because the complaint contained only a eonclusory allegation of alter ego status without alleging the elements of the doctrine). Compare Federal Reserve Bank of San Francisco v. HK Systems, No. 95 CV 4700(SJ), 1997 WL 227955, * 5 (N.D.Cal. May 1, 1997) (finding, on a Rule 12(b)(6) motion, that the allegations of the complaint were sufficient to state a claim based on alter ego liability, because they alleged that the defendant parent corporation “dominated and controlled” the subsidiary “to such an extent that the individuality and separateness of the subsidiary had ceased,” that the parent “disregarded the corporate form of the subsidiary” and that subsidiary was so inadequately capitalized that its capitalization was “illusory”). The complaint was only filed in December 2001, however, and this motion was brought some five months later, in April 2002. Given the short time frame, the court would be inclined to allow Wady to amend her complaint to allege the alter ego theory before entering summary judgment, if this were the only impediment to assertion of the theory. See, e.g., Mesler, supra, 39 Cal.3d at 297, 216 Cal.Rptr. 443, 702 P.2d 601 (holding that the trial court should have allowed plaintiff to amend the complaint to add an alter ego theory). Because the court concludes infra that Wady’s alter ego argument is futile, however, it need not take such a step. See Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th Cir.1987) (affirming district court’s denial of a motion to amend complaint where the amendment would have been “futile” and would inevitably have been defeated on summary judgment). D. Whether Plaintiff Has Raised A Triable" }, { "docid": "13305304", "title": "", "text": "failure to effect service of process. See Fed. R. Civ. P. 4(m). C. The Rule 12(b)(6) Challenge to the Claims against GAB GAB argues that the claims against it should be dismissed because Wilkins has not adequately pleaded, under Rule 9(b) or Rule 12(b)(6), that GAB caused the submission of the REA to the government. GAB also disputes Wilkins’s alter ego allegations as insufficient. (Docket Entry No. 106, at 15-25). In his memorandum in reply to GAB’s motion to dismiss, Wilkins responds only that he has adequately pleaded that GAB was the alter ego of CH & A. (Docket Entry No. 126, at 8-9). Wilkins has not adequately alleged GAB’s independent involvement in the REA submission. The only GAB involvement Wilkins alleges happened before the submission of the REA on May 16, 1994 is a telephone call he had with Peter Rescig-no of GAB, in which Wilkins expressed his misgivings about the REA. (Docket Entry No. 96, Relator’s First Amended Original Complaint, ¶ 34). This allegation is not enough to allow Wilkins’s theory of direct liability on the part of GAB to survive either the Rule 9(b) challenge or the Rule 12(b)(6) challenge. Wilkins also seeks to hold GAB hable under an alter ego theory. Under Texas law, the alter ego doctrine “applies ‘when there is such unity between the parent corporation and its subsidiary that the separateness of the two corporations has ceased and holding only the subsidiary corporation liable would result in injustice.’ ” Gardemal v. Westin Hotel Co., 186 F.3d 588, 593 (5th Cir.1999) (quoting Harwood Tire-Arlington, Inc. v. Young, 963 S.W.2d 881, 885 (Tex.App.—Fort Worth 1998, writ dism’d by agr.)). In Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208 (5th Cir.2000), the Fifth Circuit observed that there are “twelve factors to be used when assessing whether a subsidiary is the alter ego of its parent. However, we [have] also noted that the assessment is based on a consideration of totality of the circumstances.” Id., 205 F.3d at 218. The twelve factors are: (1) the parent and the subsidiary have common stock ownership; (2)" }, { "docid": "21368644", "title": "", "text": "the appropriate course is to allow discovery to go forward and give the parties an opportunity to prove their versions of the facts. Accordingly, plaintiffs showing on the identity of the counterparty is sufficient to sustain the attachment. IV. Piercing the Corporate Veil Via Sistina challenges plaintiffs attempt to pierce the corporate veil and hold Via Sistina liable for ATL-BVI’s apparent breach of the charter party on two grounds. First, it argues that plaintiffs allegations are insufficient on their face under various relevant pleading standards. Second, it argues that the evidence submitted by the parties shows that piercing would be inappropriate. The former argu ment is subject to the standards for motions to dismiss, while the latter argument, which goes only to the merits of the attachment, will be analyzed under the “reasonable grounds” standard discussed above. “Federal courts sitting in admiralty apply federal common law when examining corporate identity.” Status Int'l S.A. v. M & D Mar. Ltd., 994 F.Supp. 182, 186 (S.D.N.Y.1998). Veil-piercing is appropriate in two circumstances: where the parent used the corporate entity to perpetrate a fraud, or where the parent has so dominated and disregarded the corporate entity’s form that the entity primarily transacted the parent’s business rather than its own. See Dow Chem. Pacific Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 342 (2d Cir.1986). Plaintiff alleges both theories here. (Compl.¶¶ 19, 20.) To show that piercing is appropriate on an alter ego theory, “[a]etual domination, rather than the opportunity to exercise control, must be shown.” De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir.1996), quoting Williams v. McAllister Bros. Inc., 534 F.2d 19, 21 (2d Cir.1976). “In making an alter ego determination, a court is concerned with reality and not form, and with how the corporation operated. Unlike the theory of agency, which interprets a contractual relationship, alter ego examines the actual conduct of the parent vis-á-vis its subsidiary.” Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 447 F.3d 411, 416 (5th Cir.2006) (internal citations, alterations and quotation marks omitted). A. Sufficiency of Plaintiffs Veil-Piercing Allegations Via Sistina’s arguments against the" }, { "docid": "6649917", "title": "", "text": "and officers. Sonora Diamond Corp. v. superior Court, 83 Cal.App.4th 523, 538-39, 99 Cal.Rptr.2d 824 (2000). Common ownership alone is insufficient to disregard the corporate form. Plaintiffs allege “on information and belief’ that the individual Ali Defendants are the alter egos of the corporate defendants, which Plaintiffs collectively refer to as the “the Autowest Collision Group” and that the corporate Defendants are underfunded, are not stand alone corporations, have common management and pay practices, share labor and materials, including a distribution and billing system, and operate a common marketing system. (FAC ¶ 9c.) Plaintiffs further allege that “there exists a unity of interests and ownership [such] that the separate personalities of the corporations and the Autowest Collision Group Employers [the individual Ali Defendants] no longer exist,” and that “an inequity would result if the corporations are not viewed as alter egos of each other and the” individual Ali Defendants, “including the inability on the part of the Corporate Defendants to satisfy a potential judgment in this case which seeks wages and derivative penalties.” (Id.) Plaintiffs’ alter ego allegations are too conclusory to survive a motion to dismiss. “Conclusory allegations of ‘alter ego’ status are insufficient to state a claim. Rather, a plaintiff must allege specifically both of the elements of alter ego liability, as well as facts supporting each.” Neilson v. Union Bank of Cal,, N.A., 290 F.Supp.2d 1101, 1116 (C.D.Cal.2003). Not only are Plaintiffs’ allegations “on information and belief’ about a unity of interest between all Defendants conclusory, but Plaintiffs have also not adequately alleged that inequity would result from respecting the corporate form of Defendants. Plaintiffs state conclusorily that “an inequity would result if the corporations were not viewed as alter egos of each other and the [individual Ali Defendants], including the inability on the part of the Corporate Defendants to satisfy a potential judgment in this case which seeks wages and derivative penalties.” (FAC ¶ 9d.) California courts have rejected, however, “the view that the potential difficulty a plaintiff faces collecting a judgment is an inequitable result that warrants application of the alter ego doctrine.” Neilson, 290" }, { "docid": "9179366", "title": "", "text": "cannot survive because (1) the plaintiffs do not meet Rule 9(b)'s heightened pleading standard for the fraud claim; and (2) a contract claimant may only pierce the veil if the defendant has committed actual fraud against the plaintiff for the defendant's personal benefit. Dkt. 42 at 23-24. The plaintiffs argue that their complaint contains sufficient allegations to support their alter ego theory to pierce the corporate veil. Dkt. 47 at 53-54. In reply, MidCap relies on Valdes , which MidCap argues the plaintiffs cannot meaningfully distinguish. Dkt. 58 at 9. While the court found, supra , that the evidence submitted did not support an alter ego theory of jurisdiction, relying heavily on Valdes , the court must take the allegations in the second amended complaint as true when considering a motion to dismiss for failure to state a claim. Taking these allegations as true, the plaintiffs have pled enough facts to meet the Rule 9(b) pleading standard for their alter ego fraud claim, and they have sufficiently alleged that MidCap committed fraud against the plaintiffs for its own personal benefit. See Dkt. 104 at 41-42. MidCap's motion to dismiss for failure to state a claim with regard to these theories is therefore DENIED . 7. Agency Finally, with regard to the plaintiffs' attempt to impute liability under an agency theory, MidCap asserts that the plaintiffs do not meet Rule 9(b)'s standard because they do not provide any specificity about actual or apparent authority. Dkt. 42 at 24-25. MidCap also contends that there is no indication that MidCap had the right to control the means and details of Graebel's day-to-day operations. Dkt. 58 at 9-10. In the second amended complaint, the plaintiffs allege that MidCap had the right to control how Graebel allocated capital and to control the means and details of the processes Graebel used to maximize its revenue. Dkt. 104 at 42-43. They also assert that the credit and security agreement between MidCap and Graebel gave MidCap \"virtual control over all of the Graebel Entities.\" Dkt. 104 at 23. The second amended complaint delineates the specific paragraphs of the" }, { "docid": "9892325", "title": "", "text": "the liberal ‘notice pleading’ standard of Rule 8(a) applies.”) To avoid dismissal, a party seeking application of the doctrine must come forward with factual allegations as to both elements of the veil-piercing claim. See, e.g., JSC Foreign Econ. Ass’n Technostroyexport v. Int’l Dev. & Trade Servs., 295 F.Supp.2d 366, 379 (S.D.N.Y.2003) (stating that both elements of a veil-piercing claim must be alleged); Zinaman v. USTS New York, Inc., 798 F.Supp. 128, 131 (S.D.N.Y.1992) (same). Furthermore, it is well established that “purely conclusory allegations cannot suffice to state a claim based on veil-piercing or alter-ego liability, even under [Rule 8(a)’s] liberal notice pleading standard.” In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d at 426; see also De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir.1996) (dismissing alter-ego claim where complaint was “devoid of any specific facts or circumstances supporting” plaintiffs conclusory allegations concerning defendant’s domination of its subsidiary); Zinaman, 798 F.Supp. at 132 (S.D.N.Y.1992) (dismissing alter ego claim on the grounds that “[cjomplaint [was] conclusory at best and failfed] to plead to requisite elements of an alter ego theory”). EED has adequately alleged the first element of a veil-piercing claim — ie., that McKelvey dominated PJAC. The complaint contains factual allegations concerning how McKelvey dominated PJAC (see Compl. ¶¶ 9, 42, 44), how he “used PJAC to further his own interest, at the expense of creditors of PJAC and its subsidiaries” (id. at ¶ ¶ 9, 42, 43), and how he “directed PJI to conceal information from EED as to its operating difficulties and delays.” (id. ¶ 20). However, EED has failed to properly allege the second element of the veil-piercing claim — i.e., that McKelvey used his domination over PJAC to commit a fraud or wrong against EED that which resulted in plaintiffs injury. To satisfy this element, EED alleges only that McKelvey “knowingly undercapitalized [PJAC and PJI] to avoid obligations that would arise from their operations, including the obligations to EED under the Construction Agreement and the Guaranty,” (ComplA 41). However, EED fails to provide any factual allegations as to why the undercapitalization of" } ]

[ { "docid": "14434738", "title": "", "text": "will be required to take her share of those items into account whether she flies a joint or a separate tax return, see, e.g., Treas. Reg. § 1.702-l(d), and in either case, her tax liability will be determined in part by taking partnership items into account. Accordingly, such a spouse will be treated as a partner whether she flies jointly or separately. See I.R.C. § 6231(a)(2)(B). Her treatment as a partner derives, in part, from her property interest under state law. While both spouses holding a joint interest are treated as partners, the Code further provides that “a husband and wife who have a joint interest in a partnership shall be treated as 1 person.” I.R.C. § 6231(a)(12). Second, the spouse may own no interest in the member’s partnership interest. Nonetheless, if the spouse and the member file a joint return, because (1) the member will be required to take his distributive share of the partnership items into account in computing the couple’s aggregate income, see I.R.C. § 702(a); Treas. Reg. § 1.702-l(a); (2) a single tax liability is computed on the basis of this aggregate income, see I.R.C. § 6013(d)(3); and (3) each spouse’s liability for that tax is joint and several, see id., the spouse meets the requirements of Code section 6231(a)(2)(B) — that is, her tax liability is in part determined by taking into account partnership items. Accordingly, such a spouse is also “treated as a partner,” as confirmed by a separate regulation. Temp. Treas. Reg. § 301.6231(a)(2)-lT(a). However, such a spouse will not be treated as a partner, if she files separately and owns no interest in or share of the member’s partnership items. The purpose of the TEFRA provisions described above is to ensure that, in general, partnership items are adjusted once at the partnership level. All partners, whose tax liability will be affected by its outcome, have the opportunity to participate in the audit allowing each to be bound by its result. In general, there are few exceptions to these centralized procedures. However, one way for a partner to avoid being treated under the" } ]

[ { "docid": "8004610", "title": "", "text": "under the “innocent spouse” provision, 26 U.S.C. § 6015. Section 6015 provides three distinct types of relief for taxpayers who file joint returns. First, § 6015(b) provides relief for all joint filers who satisfy the five requirements listed in that section. Second, § 6015(c) allows a spouse who filed a joint tax return to elect to limit her income tax liability for that year to her separate liability amount. Section 6015(c) applies only to taxpayers who are no longer married, are legally separated, or do not reside together over a twelve-month period. 26 U.S.C. § 6015(c)(3)(A)(i). Furthermore, a spouse who had actual knowledge of an item giving rise to a deficiency at the time that spouse signed the return may not seek relief under § 6015(c). 26 U.S.C. § 6015(c)(3)(C). Finally, a taxpayer may seek relief as an “innocent spouse” under § 6015(f), which authorizes the Secretary of the Treasury (the “Secretary”) or his delegate to grant equitable relief from joint and several liability when relief is unavailable under § 6015(b) and (c). Except for the knowledge requirement of § 6015(c)(3)(C) (the provision disallowing election of separate liability to a spouse with actual knowledge of the item giving rise to the deficiency), the taxpayer bears the burden of proving that she has met all the prerequisites for innocent spouse relief. See Reser v. Comm’r, 112 F.3d 1258, 1262-63 (5th Cir.1997). Section 6015(c)(3)(C) explicitly places the burden of proof on the Secretary. IV. Standard of Review This court reviews decisions of the Tax Court “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1) (1989 & Supp.2001). Thus, we review issues of law de novo and findings of fact for clear error. Park v. Comm’r, 25 F.3d 1289, 1291 (5th Cir.1994). The Tax Court’s determination that a spouse is not entitled to innocent spouse relief is a finding of fact that this court reviews for clear error. Reset, 112 F.3d at 1262. V. Section 6015(b) Relief Section 6015(b)(1) provides innocent spouse relief if the taxpayer" }, { "docid": "5350920", "title": "", "text": "However, a spouse may apply for innocent spouse relief from joint and several liability under I.R.C. § 6015, which sets forth three possible avenues for relief. Form 8857 lists the three possible forms of relief, which correspond to three subsections of § 6015:(1) separation of liability for an understatement of tax, if the taxpayers are divorced, separated, or living apart, see § 6015(c); (2) innocent spouse relief for an understatement of tax due to “erroneous items” of the spouse or former spouse of which the innocent spouse was unaware, see § 6015(b); and (3) equitable relief for an underpayment of tax, if the taxpayer does not qualify for relief under either of the first two options, see § 6015(f). Ewing checked the third option, seeking equitable relief from the 1995 tax liability. Subsection (f) states in full: Under procedures prescribed by the Secretary, if— (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and (2) relief is not available to such individual under subsection (b) or (c), the Secretary may relieve such individual of such liability. I.R.C. § 6015(f). In a statement attached to her Form 8857, Ewing stated that, when she married Wiwi on September 9, 1995, she did not know that Wiwi had failed to make estimated tax payments, but he later promised to pay the tax due, and she did not learn that the tax had not been paid until November 1998. She included a computation, showing her, 1995 wages, withholdings, and an alleged resultant tax liability of zero. In a preliminary determination, the Internal Revenue Service (“IRS”) denied Ewing relief on the following basis: “You did not meet the requirements for equitable relief in that you were not divorced, separated or lived apart for 12 months prior to the, date of the request, lack of hardship and no legal obligation of one spouse over the other.” Ewing appealed the preliminary determination. In a subsequent report, the IRS concluded that Ewing should have known about the deficiency" }, { "docid": "5350918", "title": "", "text": "TASHIMA, Circuit Judge. The Commissioner of Internal Revenue challenges a decision of the United States Tax Court, concluding that Gwendolyn Ewing was entitled to relief under the so-called equitable innocent spouse provision of the Internal Revenue Code (“I.R.C.”), 26 U.S.C. § 6015(f). The Commissioner further contends that the Tax Court did not have jurisdiction to review Ewing’s petition under I.R.C. § 6015(e). Ewing cross-appeals the Tax Court’s failure to order that she be granted a refund of excess taxes paid. We have jurisdiction to review decisions of the Tax Court pursuant to I.R.C. § 7482(a)(1). We conclude that the Tax Court erred in holding that it had jurisdiction because there was no deficiency asserted, as required by I.R.C. § 6015(e). We therefore reverse the decision of the Tax Court. I Ewing and Richard Wiwi were married in September 1995. They decided to file a joint income tax return, rather than separate returns, for 1995 because the joint return lessened their tax liability. On the return, they reported $57,373 in wages earned by Ewing as a medical technologist, $23,502 in business income earned by Wiwi, who was self-employed as a financial adviser, and $16,892 in taxes due. Ewing had $10,862 withheld from her wages, but Wiwi had made no estimated tax payments; therefore, the return included a form calculating a $190 penalty for underpayment of estimated tax. This penalty was listed on the return, resulting in a liability of $6,220. Ewing and Wiwi both signed the return and included payment in the form of a check from Ewing for $1,069, and a check from Wiwi for $551. In 1999, Ewing filed a Form 8857, Request for Innocent Spouse Relief, seeking relief from the remaining unpaid 1995 tax liability. “Generally, marital partners who file a joint return are jointly and severally liable for its accuracy and any assessments due.” Wiksell v. Comm’r, 90 F.3d 1459, 1461 (9th Cir.1996); see I.R.C. § 6013(d)(3) (providing that, “if a joint return is made, the tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several”)." }, { "docid": "2340822", "title": "", "text": "will “apply a de novo standard of review as well as a de novo scope of review.” Porter II, 132 T.C. at 210; see also Maj. Op. at 982, 994. That is no “review” at all. The Tax Court is simply deciding for itself, based on a record it will create for itself, whether the taxpayer is entitled to innocent spouse relief. Under the Tax Court’s view, the Commissioner’s decision plays no role in the Tax Court’s decision. See Porter II, 132 T.C. at 229 (Gustafson, J., dissenting) (“[The majority’s] conception denudes th[e Secretary’s] ‘discretion’ of any effect and contradicts the essence of discretion being granted to an agency.”). That is an extraordinary proposition of American administrative law-—-one that cries for clear statutory authorization from Congress. To that question I now turn. A. Innocent Spouse Relief Under § 6015 As the majority has ably described, an innocent spouse has long had some form of relief, from unpaid or deficient taxes, available under various provisions of the Internal Revenue Code. See Maj. Op. at 981-84. Currently, 26 U.S.C. § 6015 provides two mechanisms for addressing innocent spouse claims. First, “[u]nder procedures prescribed by the Secretary, if ... there is an understatement of tax attributable to erroneous items of one individual filing the joint return,” the “other individual”—ie., the “innocent spouse”—may “establish[] that in signing the return he or she did not know, and had no reason to know, that there was such understatement.” 26 U.S.C. § 6015(b)(1)(B), (C). Where it would be “inequitable” to hold the innocent spouse liable, and the innocent spouse elects the benefits of § 6015, the innocent spouse “shall be relieved of liability for tax.” Id. § 6015(b)(1)(D), (E); see also id. § 6015(c) (providing similar relief for taxpayers who are no longer married or are legally separated or not living together). Upon the filing of a petition for review, the Tax Court has jurisdiction to “determine the appropriate relief’ for any individual “against whom a deficiency has been asserted.” Id. § 6015(e)(1)(A). Second, § 6015(f) authorizes the Secretary to grant innocent spouse relief where such relief" }, { "docid": "11178846", "title": "", "text": "that it would be inequitable to hold the taxpayer liable for the deficiency. 26 U.S.C. § 6015(b). Subpart (c) of § 6015 permits a taxpayer who is no longer married to or is legally separated from his/her spouse to elect to limit liability for any deficiency attributable to the spouse to the taxpayer's separate liability amount in certain situations. 26 U.S.C. § 6015(c). Subpart (f) applies when relief is not available under § 6015(b) or (c). 26 U.S.C. § 6015(f). Subpart (f) applies to Neal's case because she seeks equitable relief from an unpaid tax, i.e., an underpayment of taxes shown on the return but not paid with the return. . In its Brief to this Court, the Commissioner argued that § 6015(e) did not grant the Tax Court subject matter jurisdiction over § 6015(f) requests. During the briefing stage of this case, Congress amended § 6015(e) to explicitly grant the Tax Court jurisdiction over § 6015(f) cases. Tax Relief and Health Care Act of 2006, Pub.L. No. 109-432, Div. C, § 408, 120 Stat. 2922, 3061-62 (2006). More specifically, in § 6015(e), Congress added, “or in the case of an individual who requests equitable relief under subsection (f)” after \"who elects to have subsection (b) or (c) apply.” Id. The Commissioner subsequently withdrew this jurisdiction challenge. The Commissioner's remaining claims are: (1) that under § 6015(e) the Tax Court has jurisdiction in innocent spouse cases but its review is confined to consideration of the administrative record, and (2) alternatively, even if the Tax Court appropriately considered evidence outside the administrative record, it nevertheless erred in concluding that the Commissioner's denial of equitable relief was an abuse of discretion. .The majority of the facts recited here are from the Tax Court’s findings. It is unclear from the administrative record whether Neal disclosed her financial history and these facts to the IRS in her initial interview because no transcript of the interview exists. .At the Tax Court trial, Neal presented evidence, not previously presented to the Commissioner, that Alimam forged Neal's signature on the 1993 and 1995 returns. .Neal's employer withheld" }, { "docid": "8004609", "title": "", "text": "T.C. 183, 2000 WL 1227132 (2000). The Tax Court found that Appellant failed to establish that she “did not know, and had no reason to know” of the tax understatement as required for relief under § 6015(b)(1)(C). Id. at 193. The Tax Court also found that Appellant was not entitled to relief under § 6015(c) because she had “actual knowledge ... of any item giving rise to a deficiency” within the meaning of § 6015(c)(3)(C). Id. at 197. Finally, the Tax Court held that the Commissioner did not abuse his discretion in denying Appellant equitable relief under § 6015(f) with respect to the retirement distributions and the interest income, as well as the § 6662(a) penalty associated with the interest income. Id. at 198. III. The Statutory Scheme Generally, spouses who choose to file a joint return are subject to joint and several liability for tax deficiencies under the Internal Revenue Code. 26 U.S.C. § 6013(d)(3) (Supp.2001). Recognizing that joint and several liability may be unjust in certain circumstances, Congress authorized relief from such liability under the “innocent spouse” provision, 26 U.S.C. § 6015. Section 6015 provides three distinct types of relief for taxpayers who file joint returns. First, § 6015(b) provides relief for all joint filers who satisfy the five requirements listed in that section. Second, § 6015(c) allows a spouse who filed a joint tax return to elect to limit her income tax liability for that year to her separate liability amount. Section 6015(c) applies only to taxpayers who are no longer married, are legally separated, or do not reside together over a twelve-month period. 26 U.S.C. § 6015(c)(3)(A)(i). Furthermore, a spouse who had actual knowledge of an item giving rise to a deficiency at the time that spouse signed the return may not seek relief under § 6015(c). 26 U.S.C. § 6015(c)(3)(C). Finally, a taxpayer may seek relief as an “innocent spouse” under § 6015(f), which authorizes the Secretary of the Treasury (the “Secretary”) or his delegate to grant equitable relief from joint and several liability when relief is unavailable under § 6015(b) and (c). Except for" }, { "docid": "11999342", "title": "", "text": "1998, Congress repealed § 6013(e) and replaced it with § 6015, which provides expanded forms of innocent spouse relief. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub L. No. 105-206, § 3201,112 Stat. 685, 740 (1998) (“the 1998 Act”). Section 6015 replaced § 6013(e) for any liability for tax arising after July 22, 1998 and for any liability for tax remaining unpaid as of that date. To qualify for innocent spouse relief, the taxpayer must show that the couple filed a joint return, that the return contained an understatement attributable to “erroneous items” of the other spouse, and that in signing the return, the “innocent spouse” did not know or have reason to know of the understatement. See § 6015(b). The taxpayer must also show it would be inequitable to hold her liable. § 6015(b)(1)(D). A taxpayer can qualify for innocent spouse relief under one of three provisions of § 6015: § (b), § (c), or § (f). Section 6015(b) is available to all joint filers. Section 6015(c) applies only to those taxpayers who are no longer married, legally separated, or not living together. Section 6015(f) provides for selective equitable relief for those taxpayers who do not meet the requirements of § (b) or § (c). If a taxpayer is found eligible for innocent spouse relief, the taxpayer may then seek a refund for any payments that the taxpayer made on the non-innocent spouse’s tax debt. See § 6015(g). III. Rules of Statutory Construction Whether § 6015 preempts community property law for purposes of calculating innocent spouse refunds is an issue of first impression that depends upon statutory construction. The “starting point in every case involving construction of a statute is the language itself.” Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978) (internal quotation marks omitted). “In ascertaining the plain meaning of a statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct." }, { "docid": "15055743", "title": "", "text": "tax . 16,518 OPINION As a general proposition, if a joint return is filed by a husband and wife, liability with respect to any tax shown on the return or found to be owing is joint and several. See sec. 6013(d)(3). In 1971, Congress enacted section 6013(e), the predecessor to section 6015, in order to correct perceived grave injustices often resulting from the imposition of joint and several liability. See S. Rept. 91-1537, at 2 (1970), 1971-1 C.B. 606, 607; see also Act of Jan. 12, 1971, Pub. L. 91-679, sec. 1, 84 Stat. 2063 (enacted sec. 6013(e)), as amended by the Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 424. 98 Stat. 494. 801. As amended, section 6013(e) provided that a spouse could be relieved of tax liability if the spouse proved: (1) A joint income tax return was filed; (2) the return contained a substantial understatement of tax attributable to grossly erroneous items of the other spouse; (3) in signing the return, the spouse seeking relief did not know, and had no reason to know, of the substantial understatement; and (4) under the circumstances it would be inequitable to hold the spouse seeking relief liable for the substantial understatement. The relief granted under section 6013(e) is commonly referred to as innocent spouse relief. The Enactment of Section 6015 For many taxpayers, relief under section 6013(e) was difficult to obtain. In order to make innocent spouse relief more accessible, Congress repealed section 6013(e) and enacted a new innocent spouse provision (section 6015) in 1998 as part of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, sec. 3201(a), 112 Stat. 734. See H. Conf. Rept. 105-599, at 249 (1998). The newly enacted statute provided three avenues of relief from joint and several liability: (1) Section 6015(b)(1) (which is similar to former section 6013(e)) allows a spouse to escape completely joint and several liability; (2) section 6015(b)(2) and (c) allow a spouse to elect limited liability through relief from a portion of the understatement or deficiency; and (3) section 6015(f) confers upon the" }, { "docid": "2340823", "title": "", "text": "26 U.S.C. § 6015 provides two mechanisms for addressing innocent spouse claims. First, “[u]nder procedures prescribed by the Secretary, if ... there is an understatement of tax attributable to erroneous items of one individual filing the joint return,” the “other individual”—ie., the “innocent spouse”—may “establish[] that in signing the return he or she did not know, and had no reason to know, that there was such understatement.” 26 U.S.C. § 6015(b)(1)(B), (C). Where it would be “inequitable” to hold the innocent spouse liable, and the innocent spouse elects the benefits of § 6015, the innocent spouse “shall be relieved of liability for tax.” Id. § 6015(b)(1)(D), (E); see also id. § 6015(c) (providing similar relief for taxpayers who are no longer married or are legally separated or not living together). Upon the filing of a petition for review, the Tax Court has jurisdiction to “determine the appropriate relief’ for any individual “against whom a deficiency has been asserted.” Id. § 6015(e)(1)(A). Second, § 6015(f) authorizes the Secretary to grant innocent spouse relief where such relief is not available under § 6015(b) or (c). Section 6015(f) reads in its entirety: Under procedures prescribed by the Secretary, if— (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and (2) relief is not available to such individual under subsection (b) or (c), the Secretary may relieve such individual of such liability. The Tax Court also has jurisdiction “to determine the appropriate relief available” “in the case of an individual who requests equitable relief under subsection (f).” Id. § 6015(e)(1)(A). I want to begin with a couple of simple observations about the interplay between these two forms of relief. First, the principal procedure for obtaining innocent spouse relief is found in § 6015(b) and (c). That benefit, if the innocent spouse qualifies and elects such relief, is mandatory: The innocent spouse “shall be relieved of liability for tax.” Id. § 6015(b)(1)(E) (emphasis added). This remedy is only available under the conditions specified by Congress" }, { "docid": "23632807", "title": "", "text": "GRUENDER, Circuit Judge. Theresa E. Bartman (“Bartman”) appeals an order from the United States Tax Court finding that it was without jurisdiction to review the denial by the Internal Revenue Service (“IRS”) of Bartman’s refund request for tax year 1997 and holding that Bartman is time-barred from receiving a refund for tax year 1995. For the reasons discussed below, we affirm in part and reverse in part. I. BACKGROUND . Bartman and her now-former spouse timely filed a joint income tax return for tax year 1995 reporting a $12,377 underpayment, but they did not include payment with the return. Bartman separated from her husband in 1997 and filed a separate federal income tax return for tax year 1997 on which she indicated that she overpaid her tax liability by $1,922. Pursuant to Internal Revenue Code (“IRC”), 26 U.S.C. § 6402(a), the IRS then credited the tax year 1997 overpayment to the tax year 1995 underpayment, for which Bartman was then still jointly liable. In February 2001, Bartman filed an IRS Form 8857, requesting tax liability relief pursuant to § 6015, the so-called “innocent spouse” provision, for tax years 1994, 1995 and 1996. The following month, she filed an IRS Form 1040X, amending her return for tax year 1997 and requesting a refund of the $1,922 overpayment that had been applied to the tax year 1995 underpayment. She made this refund request even though there was no longer a tax year 1997 overpayment due to the IRS’s earlier application of the $1,922 to the outstanding underpayment in tax year 1995. In January 2002, the IRS issued a Final Notice of Determination (“FND”) denying Bartman’s request for relief under § 6015. Bartman appealed the FND by filing a petition for review with the tax court. While the petition for review was pending, the IRS Appeals Office (“LAO”) reversed the FND and granted Bartman innocent spouse relief pursuant to § 6015(b) for tax year 1994 and equitable relief pursuant to § 6015(f) for tax years 1995 and 1996. However, the IAO denied Bartman’s request for a refund for tax year 1997 on the" }, { "docid": "11999341", "title": "", "text": "spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt. This state law reflects the principle articulated by the California Supreme Court that “the policy of protecting the ... creditors [of a spouse] outweighs the policy of protecting family income.... ” Babb v. Schmidt, 496 F.2d 957, 959 (9th Cir.1974) (quoting Weinberg v. Weinberg, 67 Cal.2d 557, 63 Cal.Rptr. 13, 432 P.2d 709, 711 (1967)). II. Innocent Spouse Relief Because § 6013(d) makes individuals who file joint tax returns strictly liable for the income tax debts of their spouses, Congress has long provided limited “innocent spouse” relief for certain spouses who are jointly and severally liable for tax liability stemming from a joint return. Congress first provided “innocent spouse” relief in § 6013(e) of the 1954 Code, which was enacted in 1971. See Act of January 12, 1971, Pub.L. No. 91-679, § 1, 84 Stat. 2063 (1971). In 1998, Congress repealed § 6013(e) and replaced it with § 6015, which provides expanded forms of innocent spouse relief. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub L. No. 105-206, § 3201,112 Stat. 685, 740 (1998) (“the 1998 Act”). Section 6015 replaced § 6013(e) for any liability for tax arising after July 22, 1998 and for any liability for tax remaining unpaid as of that date. To qualify for innocent spouse relief, the taxpayer must show that the couple filed a joint return, that the return contained an understatement attributable to “erroneous items” of the other spouse, and that in signing the return, the “innocent spouse” did not know or have reason to know of the understatement. See § 6015(b). The taxpayer must also show it would be inequitable to hold her liable. § 6015(b)(1)(D). A taxpayer can qualify for innocent spouse relief under one of three provisions of § 6015: § (b), § (c), or § (f). Section 6015(b) is available to all joint filers. Section 6015(c) applies only to those" }, { "docid": "11178845", "title": "", "text": "in a non-exhaustive list, and no single factor is determinative of whether equitable relief is appropriate. Rev. Proc.2000-15, § 4.03. Thus, taking into account all of the facts and circumstances and the factors listed in Revenue Procedure 2000-15, § 4.03, we cannot say that the Tax Court abused its discretion in finding that the factors, taken as a whole, weighed in favor of granting relief. IV. The Tax Court did not err in conducting a trial de novo in reviewing the Commissioner’s decision whether Neal was entitled to equitable relief under § 6015(f). The Tax Court also did not abuse its discretion in granting Neal equitable relief. The judgment of the Tax Court is therefore AFFIRMED. . Section 6015 provides three distinct types of relief for taxpayers who file joint returns. Subpart (b) of § 6015 provides relief to those taxpayers who can meet certain requirements, such as: (1) an understatement of income attributable to erroneous items; (2) that the taxpayer “did not know, and had no reason to know” of the understatement; and (3) that it would be inequitable to hold the taxpayer liable for the deficiency. 26 U.S.C. § 6015(b). Subpart (c) of § 6015 permits a taxpayer who is no longer married to or is legally separated from his/her spouse to elect to limit liability for any deficiency attributable to the spouse to the taxpayer's separate liability amount in certain situations. 26 U.S.C. § 6015(c). Subpart (f) applies when relief is not available under § 6015(b) or (c). 26 U.S.C. § 6015(f). Subpart (f) applies to Neal's case because she seeks equitable relief from an unpaid tax, i.e., an underpayment of taxes shown on the return but not paid with the return. . In its Brief to this Court, the Commissioner argued that § 6015(e) did not grant the Tax Court subject matter jurisdiction over § 6015(f) requests. During the briefing stage of this case, Congress amended § 6015(e) to explicitly grant the Tax Court jurisdiction over § 6015(f) cases. Tax Relief and Health Care Act of 2006, Pub.L. No. 109-432, Div. C, § 408, 120 Stat." }, { "docid": "2340799", "title": "", "text": "Bill of Rights II, Pub.L. No. 104-168, § 401, 110 Stat. 1452, 1469 (1996). . Subsection (b) of § 6015 grants relief to taxpayers when: (1) \"there is an understatement of tax attributable to erroneous items of one individual filing the joint return”; (2) the taxpayer establishes that \"he or she did not know, and had no reason to know” about the understatement; (3) the totality of the circumstances indicates that it is inequitable to hold the taxpayer liable for the deficiency; and (4) the taxpayer files for innocent spouse relief within two years of the date on which the Secretary begins collection activities. 26 U.S.C. § 6015(b). Subsection (c) of § 6015, on the other hand, allows taxpayers who are no longer married, legally separated, or not living together to limit their liability for deficiencies attributable to their spouse. 26 U.S.C. § 6015(c). . Section 6015(f) provides: (f) Equitable relief.—-Under procedures prescribed by the Secretary, if— (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and (2) relief is not available to such individual under subsection (b) or (c), the Secretary may relieve such individual of such liability. 26 U.S.C. § 6015(f). . Section 6015(e) provides, in pertinent part: (e) Petition for review by Tax Court.— (1) In general.—In the case of an individual against whom a deficiency has been asserted and who elects to have subsection (b) or (c) apply, or in the case of an individual who requests equitable relief under subsection (f)— (A) In general.—In addition to any other remedy provided by law, the individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed-— (i) at any time after the earlier of— (I) the date the Secretary mails, by certified or registered mail to the taxpayer’s last known address, notice of the Secretary’s final determination of relief available to the individual, or (II) the date which" }, { "docid": "5350919", "title": "", "text": "medical technologist, $23,502 in business income earned by Wiwi, who was self-employed as a financial adviser, and $16,892 in taxes due. Ewing had $10,862 withheld from her wages, but Wiwi had made no estimated tax payments; therefore, the return included a form calculating a $190 penalty for underpayment of estimated tax. This penalty was listed on the return, resulting in a liability of $6,220. Ewing and Wiwi both signed the return and included payment in the form of a check from Ewing for $1,069, and a check from Wiwi for $551. In 1999, Ewing filed a Form 8857, Request for Innocent Spouse Relief, seeking relief from the remaining unpaid 1995 tax liability. “Generally, marital partners who file a joint return are jointly and severally liable for its accuracy and any assessments due.” Wiksell v. Comm’r, 90 F.3d 1459, 1461 (9th Cir.1996); see I.R.C. § 6013(d)(3) (providing that, “if a joint return is made, the tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several”). However, a spouse may apply for innocent spouse relief from joint and several liability under I.R.C. § 6015, which sets forth three possible avenues for relief. Form 8857 lists the three possible forms of relief, which correspond to three subsections of § 6015:(1) separation of liability for an understatement of tax, if the taxpayers are divorced, separated, or living apart, see § 6015(c); (2) innocent spouse relief for an understatement of tax due to “erroneous items” of the spouse or former spouse of which the innocent spouse was unaware, see § 6015(b); and (3) equitable relief for an underpayment of tax, if the taxpayer does not qualify for relief under either of the first two options, see § 6015(f). Ewing checked the third option, seeking equitable relief from the 1995 tax liability. Subsection (f) states in full: Under procedures prescribed by the Secretary, if— (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and (2)" }, { "docid": "11178812", "title": "", "text": "hold the individual liable for any unpaid tax or any deficiency (or any portion of either)” and relief would not be available under subsection (b) or (c). 26 U.S.C. § 6015(f). The parties agree that relief is not available to Neal under § 6015(b) and (c), and that Neal may properly seek equitable relief under § 6015(f) as an alleged innocent spouse. In addition, subpart (e) of § 6015 authorizes a taxpayer who has been denied relief pursuant to subparts (b), (c), or (f) to petition the Tax Court for relief. Section 6015(e) expressly grants jurisdiction to the Tax Court to “determine the appropriate relief available to the individual.” 26 U.S.C. § 6015(e). Section 6015(e) does not say the taxpayer “may appeal” the Commissioner’s § 6015(f) decision to the Tax Court or that the Tax Court may hear an appeal. Rather, § 6015(e) authorizes the taxpayer to seek § 6015(f) relief from the Tax Court. Id. Section 6015(e) also states that a petition for relief from the Tax Court is “[i]n addition to any other remedy provided by law.” Id. B. Neal and her ex-husband Alimam Neal (“Alimam”) married in 1976, resided together until 1996, and divorced in 1998. During the marriage, the couple kept largely separate finances, maintained separate checking accounts, and rarely discussed their financial arrangements. Neal, a radiologist employed by the Medical College of Georgia, paid most of the family expenses, including half of the monthly mortgage payment, groceries, and schooling and activities for the couple’s three children. Alimam, a self-employed anesthesiologist, paid the other half of the mortgage, the housekeeper, and the utilities and car payments. Despite Neal’s requests to Alimam, she was not privy to the financial aspects of Alimam’s business. Neal relied upon Alimam and his accountant to prepare and file the couple’s joint federal income tax returns. She merely gave Alimam her W-2 forms and then signed the returns once Alimam received them from the accountant. Neal never spoke to the accountant nor did she examine the completed tax returns. Neal “imagined” that Alimam properly submitted their financial information to the accountant and" }, { "docid": "2340764", "title": "", "text": "against an unknown and unexpected tax liability,” proposed replacing the joint and several tax liability standard with a proportional liability standard. ABA Section of Taxation Domestic Relations Committee, Comments on Liability of Divorced Spouses for Tax Deficiencies on Previously Filed Joint Returns, 50 Tax Law. 395, 402 (1997). In response, Congress directed the GAO and the Department of the Treasury to study the innocent spouse relief provisions and to evaluate the ABA proposal. After evaluating the responses, Congress engaged in innocent spouse taxpayer reform by repealing the prior provisions altogether and enacting the current innocent spouse laws, codified at 26 U.S.C. § 6015, IRS Restructuring and Reform Act of 1998, Pub.L. No. 105-206, § 3201(b), 112 Stat. 685, 734-40. Under § 6015, the IRS may grant taxpayers relief from joint lia bility in three contexts. Sections 6015(b) and (c) apply when taxpayers have demonstrated an “understatement” or “deficiency” on joint returns filed with the IRS. In non-deficiency cases, “where a spouse asks for relief on her own initiative, and not in response to a deficiency action or moves by the IRS to collect a tax debt,” relief is available through § 6015(f), which provides for equitable relief where there is an underpayment of tax on a correct return. As originally enacted, § 6015(e)(1) allowed taxpayers denied relief by the IRS under subsections (b) or (c) to petition the Tax Court for relief. In Ewing v. Commissioner, 118 T.C. 494 (2002), the Tax Court concluded that § 6015(e)(1) granted it jurisdiction over non-deficiency cases brought under § 6015(f) as well. We reversed the Tax Court’s assertion of jurisdiction over § 6015(f) petitions in Ewing v. Commissioner, 439 F.3d 1009 (9th Cir. 2006), after finding that the plain language of the statute precluded this interpretation. Congress thereafter amended § 6015(e) to expressly grant the Tax Court jurisdiction to review petitions for equitable relief under § 6015(f) that have been denied by the IRS, like the petition at issue here. Tax Relief and Health Care Act of 2006, Pub.L. No. 109-432, div. C, § 408, 120 Stat. 2920, 3061-62. In implementing the innocent" }, { "docid": "15055744", "title": "", "text": "reason to know, of the substantial understatement; and (4) under the circumstances it would be inequitable to hold the spouse seeking relief liable for the substantial understatement. The relief granted under section 6013(e) is commonly referred to as innocent spouse relief. The Enactment of Section 6015 For many taxpayers, relief under section 6013(e) was difficult to obtain. In order to make innocent spouse relief more accessible, Congress repealed section 6013(e) and enacted a new innocent spouse provision (section 6015) in 1998 as part of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, sec. 3201(a), 112 Stat. 734. See H. Conf. Rept. 105-599, at 249 (1998). The newly enacted statute provided three avenues of relief from joint and several liability: (1) Section 6015(b)(1) (which is similar to former section 6013(e)) allows a spouse to escape completely joint and several liability; (2) section 6015(b)(2) and (c) allow a spouse to elect limited liability through relief from a portion of the understatement or deficiency; and (3) section 6015(f) confers upon the Secretary discretion to grant equitable relief in situations where relief is unavailable under section 6015(b) or (c). Section 6015 generally applies to any liability for tax arising after July 22, 1998, and any liability for tax arising on or before July 22, 1998, that remains unpaid as of such date. See H. Conf. Rept. 105-599, supra at 251. Applicable Statutory Provisions Section 6015(b) provides: SEC. 6015(b). Procedures for Relief From Liability Applicable to All Joint Filers.— (1) In general. — Under procedures prescribed by the Secretary, if— (A) a joint return has been made for a taxable year; (B) on such return there is an understatement of tax attributable to erroneous items of 1 individual filing the joint return; (C) the other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such understatement; (D) taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such" }, { "docid": "16881022", "title": "", "text": "POSNER, Circuit Judge. Taxpayers filing a joint return are jointly and severally liable for the entire tax liability shown or that should have been shown on their return. 26 U.S.C. § 6013(d)(3). But section 6015 of the Internal Revenue Code sets forth grounds— “innocent spouse” rules first added to the Code in 1971 and liberalized since, Lily Kahng, “Innocent Spouses: A Critique of the New Tax Laws Governing Joint and Several Tax Liability,” 49 Vill. L.Rev. 261, 264-70 (2004); Svetlana G. Attestatova, Comment, “The Bonds of Joint Tax Liability Should Not Be Stronger Than Marriage: Congressional Intent Behind § 6015(c) Separation of Liability Relief,” 78 Wash. L. Rev. 831, 831-41 (2003) — for relieving the signer of a joint return of his or her joint and several liability for understatement or nonpayment of income tax due. Section 6015(f), captioned “equitable relief,” provides that “under procedures prescribed by the [Department of the Treasury], if (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency ...; and (2) relief is not available to such individual under subsection (b) or (c) [of section 6015], the [Department] may relieve such individual of such liability.” By regulation the Treasury has fixed a deadline for filing claims under subsection (f) of two years from the IRS’s first action to collect the tax by (for example) issuing a notice of intent to levy on the taxpayer’s property. 26 C.F.R. § 1.6015 — 5(b)(1); see also IRS Rev. Proc. 2003-61 § 4.01(3); 26 U.S.C. § 6630(a). The Tax Court in a divided opinion invalidated the deadline in the regulation and the Internal Revenue Service appeals. The taxpayer, Cathy Lantz, is a financially unsophisticated woman whose husband, a dentist, was arrested for Medicare fraud in 2000, convicted, and imprisoned. They had been married for only six years when he was arrested and there is no suggestion that she was aware of, let alone complicit in, his fraud. The IRS learned that the joint return the couple had filed had understated their federal income tax liability" }, { "docid": "427425", "title": "", "text": "that he qualifies as an “innocent spouse” under the Internal Revenue Code. See I.R.C. § 6015 (West Supp. 1998). Generally, when taxpayers file a joint income tax return, they are jointly and severally liable for the amount of tax or any deficiency due. See Shea v. Commissioner, 780 F.2d 561, 564 (6th Cir.1986). The innocent spouse provision constitutes an exception to that general rule. Congress enacted this provision to prevent hardships that resulted when one spouse did not report income, thereby leaving the “innocent spouse” to pay the deficiency. Id. If a spouse succeeds in proving his or her eligibility for treatment under the innocent spouse provision, that spouse is liable for a deficiency on the joint return only to the extent that items giving rise to the deficiency are allocable to that spouse. See I.R.C. § 6015(d); S. Rep. No. 105-174, at 56 (1998). Items are then allocated between the spouses, typically in the same manner as if the spouses had filed separate returns. See id. Before the tax court, Grossman asserted that he was eligible for relief with respect to his and Betsy’s 1986 joint tax return under the innocent spouse provision in § 6013(e). See I.R.C. § 6013(e) (West 1989) (repealed 1998). In 1998, Congress passed the Internal Revenue Restructuring and Reform Act (IRRRA) of 1998, Pub.L. No. 05-206, 112 Stat. 685 (1998). That legislation repealed § 6013(e), see IRRRA § 3201(e)(1), and enacted a new, and in some respects more generous, innocent spouse provision, which is now codified at § 6015 of the Code. See IRRRA § 3201(a); I.R.C. § 6015. For example, while the old law only provided innocent spouses relief from understatements stemming from “grossly erroneous items,” the new provision extends this relief to liability for understatements stemming from merely “erroneous” items. See I.R.C. § 6015(b)(1)(B). On appeal, Grossman contends that he is eligible for innocent spouse relief under this new law. Initially, we note that whether the new statute controls here is by no means clear. The 1998 legislation applies to tax liability unpaid as of July 22, 1998. See IRRRA § 3201(g)." }, { "docid": "19965019", "title": "", "text": "did, argue that the three-year statute of limitations on assessment had already run. When the Goldens agreed to a stipulated decision, they settled all claims that were or could have been raised in that case, including the statute of limitations. The Goldens are therefore precluded from asserting these same challenges almost ten years later. B. Innocent-Spouse Relief The Tax Court’s ruling that Mrs. Golden did not meet the requirements for innocent-spouse relief is a finding of fact reviewed for clear error. Richardson v. Comm’r, 509 F.3d 736, 740 (6th Cir.2007); Silverman v. Comm’r, 116 F.3d 172, 173 (6th Cir.1997). Because the availability of innocent-spouse relief is not a decision about the underlying tax liability, the determination of the IRS Appeals Officer should be upheld by the Tax Court absent an abuse of discretion. See Living Care, 411 F.3d at 625-26 & n. 5. The Tax Court did not clearly err in upholding the IRS Appeals Officer’s determination that Mrs. Golden was not entitled to innocent-spouse relief. Generally, taxpayers filing joint returns are jointly and severally liable for the tax owed. I.R.C. § 6013(d)(3). Under the innocent-spouse provisions of I.R.C. § 6015, however, one spouse may be relieved of this liability. Although the Tax Court considered and rejected Mrs. Golden’s claims to all three distinct types of relief provided for by § 6015, the Goldens appeal only the decision denying relief under § 6015(b). Section 6015(b) provides for relief from liability if the taxpayer meets five requirements: (A) a joint return has been made for a taxable year; (B) on such return there is an understatement of tax attributable to erroneous items of one individual filing the joint return; (C) the other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such understatement; (D) taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to such understatement; and (E) the other individual elects (in such form as" } ]

[ { "docid": "11452089", "title": "", "text": "Viater’s conversation with Mesa constituted “custodial interrogation” within the meaning of Miranda. I now will consider whether the FBI’s conduct was “custodial interrogation” as contemplated by the Miranda Court. H. Miranda held that when the government conducts a “custodial interrogation,” it may not introduce statements made by the defendant at this interrogation unless he first had been given the now-familiar Miranda warnings. This court has recognized that “custodial interrogation” is not susceptible of an exact definition; thus the determination whether statements are the product of such “custodial interrogation” must be made on a case-by-case basis. See Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir.), cert. denied, 419 U.S. 1002, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974); United States v. Clark, 425 F.2d 827 (3d Cir.), cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). Because the application of Miranda to the present fact situation is novel, I think that it is necessary to examine the precepts underlying the Miranda rule to determine whether this evidence must be suppressed, rather than relying on a more rigid definitional approach. Miranda warnings are designed to protect against the evils of “custodial interrogation,” and they are not intended to unduly interfere with a proper system of law enforcement or to hamper the police’s traditional investigatory functions. See Miranda v. Arizona, 384 U.S. at 481, 86 S.Ct. at 1631, 16 L.Ed.2d 694. Therefore, the warnings need be given only “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” Id. at 478, 86 S.Ct. at 1630. Since Miranda, the Court has indicated that to determine whether there has been a “custodial interrogation,” a court must make two discrete inquiries. First, it must determine whether the suspect was in “custody.” See Orozco v. Texas, 394 U.S. 325, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). If the suspect was in “custody”, the court then must decide whether the police interrogated him. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Therefore I" } ]

[ { "docid": "22825165", "title": "", "text": "S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court has resisted efforts to shift attention from the custodial status of the person questioned to the coercive pressures of a particular interrogation, see generally Orozco v. Texas, 394 U.S. 324, 326-27, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (holding that Miranda warnings must be given to an arrested defendant interrogated in his own home, even though the familiar surroundings did not present the compulsive pressures of a police station). The decision to eschew a coercive-pressures test derives from a “practical recognition that ‘[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.’ ” California v. Beheler, 463 U.S. at 1124, 103 S.Ct. 3517 (quoting Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. 711). Miranda does not reach so broadly. Indeed, the Court has expressly refused to convert “a non-custodial situation ... to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ ” Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. 711. Mathiason involved a police station interview, precisely the “coercive environment” highlighted in Miranda, 384 U.S. at 461, 477, 86 S.Ct. 1602. Explaining that Miranda is triggered only when an individual is “in custody,” the Court concluded that because the defendant had voluntarily gone to the station for questioning, he was not entitled to Miranda warnings. Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. 711. Thus, although coercive pressure is Miranda’s underlying concern, custody remains the touchstone for application of its warning requirement. The test for custody is an objective one: “whether a reasonable person in defendant’s position would have understood himself to be subjected to the restraints comparable to those associated with a formal arrest.” United States v. Ali, 68 F.3d 1468, 1472 (2d Cir.1995)" }, { "docid": "9508239", "title": "", "text": "has authority to examine books, papers, and records, and we do not think any taxpayer considers an audit by a revenue agent to be a call for purely social purposes.’ ” See also United States v. Prudden, supra, at n. 14. . Had evidence from this conference been introduced at appellant’s trial, we would face consideration of whether appellant’s statements made in circumstances of manifest discomfiture were the equivalent of an in-custody interrogation. If a situation which could be characterized as psychological custody were demonstrated, a defendant’s statements made without benefit of the Miranda warnings would be inadmissible. See Miranda v. Arizona, 384 U.S. 436 at 457, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1969). Compare the circumstances in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), with Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). In applying these considerations a case by case examination for all of the compulsive factors of Miranda must be made. United States v. Montos, 421 F.2d 215 (5th Cir., 1970). Whether an individual has the physical freedom to break off an interview or refuse to answer any further questions is but one factor to be considered in determining whether the interrogation was custodial. These considerations demonstrate the wisdom of the IRS News Release IR-949 (1969 CCH Fed.Tax Rptr. ¶ 69-46) which accedes to the Seventh Circuit’s requirement of Miranda warnings in tax fraud cases. See United States v. Dickerson, 413 F.2d 1111 (7th Cir., 1969). Consequently, any holding in a case such as Bland’s is of limited precedential value." }, { "docid": "13543298", "title": "", "text": "if the statements and documents were admissible, the evidence was sufficient to establish deportability. Mr. Chavez Mr. Chavez contends that his written sworn statement should not have been admitted into evidence at the deportation hearing since he was not given Miranda warnings before being questioned at the agents’ car. In those situations in which Miranda warnings are required, the warnings must be given when the individual is subjected to a “custodial interrogation.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The Board of Immigration Appeals did not reach the broad question of whether the Miranda rule applies to deportation proceedings since it found that, in any event, Mr. Chavez was not in a “custodial setting” when he was questioned by the agents. We cannot agree with the Board’s finding. As this court recently noted, “the application of Miranda does not turn on such a simple axis as whether or not the suspect is in custody when he is being questioned.” United States v. Oliver, 505 F.2d 301, 304 (7th Cir. 1974). Rather, the warnings are required if the individual is in custody “or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. A “custodial interrogation,” moreover, may occur in places other than a police station. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). In the present case, the agents specifically asked at the hotel for Mr. Chavez. The agents allegedly told Chavez that the card which he had tendered to them was not his and that he was under arrest. Chavez was then escorted by the two agents to the agents’ car and, at that point, under questioning by the agents, Chavez made the admissions. The agents did not give Chavez Miranda warnings prior to this questioning at the car. We conclude that, under these circumstances, Chavez’s freedom of movement was significantly restrained during the interrogation at the car and that the petitioner was, therefore, subjected to a “custodial interrogation” without the benefit of Miranda warnings. Moreover, the fact that Chavez was given Miranda" }, { "docid": "15680446", "title": "", "text": "the accusatory stage * * *. The Fifth Amendment privilege prohibits the government from compelling a person to incriminate himself. It was the compulsive aspect of custodial interrogation, and not the strength or extent of the government’s suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning. We believe that the presence or absence of compelling pressures, rather than the stage to which the government’s investigation has developed, determines whether the Miranda requirements apply to any particular instance of questioning.” (Emphasis ours.) The so-called “focus” test seems to have originated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1963), and was rejected by the Miranda Court which reasoned as follows, 384 U.S. at page 444 (Fn. 4), 86 S.Ct. at page 1612: “ * * * questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way * * * ****** “ * * * is what we meant in Escobedo when we spoke of an investigation which was focused on an accused * * * (Emphasis ours.) In United States v. Jaskiewicz, 3 Cir., 433 F.2d 415 (1970), also an income tax evasion case, the Third Circuit more recently rejected the “focus” test. In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), the taxpayer was in custody on an unrelated charge and the Government sought to apply the “focus” test in determining whether the defendant was entitled to the Miranda warnings. The Court rejected the Government’s argument and applied the “custody” test. Likewise, see Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Kohatsu v. United States, 9 Cir., 351 F.2d 898 (1965), cert. denied 384 U.S. 1011, 86 S.Ct. 1915, 16 L.Ed.2d 1017 (1966), rehearing denied 385 U.S. 891, 87 S.Ct. 15, 17 L.Ed.2d 122 (1966). To hold otherwise would violate the clear language of the Miranda court, 384 U.S. at page 477, 86" }, { "docid": "21054960", "title": "", "text": "incriminatory statements from the defendant without advising him of his constitutional rights. Therefore, the crucial issue is whether the statements of the defendant were obtained pursuant to a “custodial interrogation.” The Supreme Court has defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra, at 444, 86 S.Ct. at 1612. In applying this definition to specific facts, the Supreme Court has held that a custodial interrogation occurred when an internal revenue agent questioned an individual in a prison where he was serving a state sentence, Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), and when a police officer questioned an individual in his bedroom following his arrest, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). But the Supreme Court has declined to find a custodial interrogation with respect to the interrogation by an internal revenue agent of an individual in his own home, Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), and the interrogation of an individual at a police station when the individual was informed that he was not under arrest, Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). From these cases, it is clear that the question of custodial interrogation is not dependent on any single factor but must be determined on the basis of the totality of the circumstances surrounding the interrogation. Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom" }, { "docid": "2195548", "title": "", "text": "it meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” 384 U.S. at 444, 86 S.Ct. at 1612. The Court thus abandoned the inquiry, begun in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as to whether a criminal investigation had focused on the accused. After Miranda, the sole question is whether, at the time of his questioning by the police, the person questioned is “in custody.” Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). Custody will be found if the person questioned is effectively deprived of his freedom of movement, even though the interrogation occurs in his own home. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). In Lowe v. United States, supra, Judge Carter in a carefully considered opinion held for this court that we would determine the existence of custody by applying the objective, reasonable man test earlier formulated by the California Supreme Court in People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967) . Under it a suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not leave freely. Lowe, supra, 407 F.2d at 1397; cf. People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967); Myers v. State, 3 Md.App. 534, 240 A.2d 288 (1968) . Applying our rule, we have consistently refused to find custody in the usual tax-investigation case, since those interrogated by the Internal Revenue Service are normally free to come and go as they please. United States v. Chikata, 427 F.2d 385 (9th Cir. 1970); Simon v. United States, 424 F.2d 1049 (9th Cir. 1970); Spahr v. United States, 409 F.2d 1303 (9th Cir. 1969). Similarly, we have held that a highway patrolman may properly stop a motorist to ask for his driver’s license and registration without" }, { "docid": "13543299", "title": "", "text": "required if the individual is in custody “or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. A “custodial interrogation,” moreover, may occur in places other than a police station. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). In the present case, the agents specifically asked at the hotel for Mr. Chavez. The agents allegedly told Chavez that the card which he had tendered to them was not his and that he was under arrest. Chavez was then escorted by the two agents to the agents’ car and, at that point, under questioning by the agents, Chavez made the admissions. The agents did not give Chavez Miranda warnings prior to this questioning at the car. We conclude that, under these circumstances, Chavez’s freedom of movement was significantly restrained during the interrogation at the car and that the petitioner was, therefore, subjected to a “custodial interrogation” without the benefit of Miranda warnings. Moreover, the fact that Chavez was given Miranda warnings before he signed the sworn statement is immaterial. The written statement was executed shortly after Chavez had made oral admissions to the same agents without being given the warnings. As the Court noted in Miranda, such belated warnings, from the suspect’s point of view, “came at the end of the interrogation process.” In this situation, the Court concluded, “an intelligent waiver of constitutional rights cannot be assumed.” 384 U.S. at 496, 86 S.Ct. at 1637. See also Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); United States ex rel. Williams v. Twomey, 467 F.2d 1248, 1252 (7th Cir. 1972); Sullins v. United States, 389 F.2d 985, 988 (10th Cir. 1968). We are, thus, squarely faced with the question of whether the failure to give Miranda warnings renders an alien’s statement inadmissible in a deportation proceeding. It is important to note, however, two matters which are not before us in this appeal. First, we are not here faced with the admissibility in a deportation hearing of a confession which was" }, { "docid": "5494010", "title": "", "text": "in some meaningful way imposed restraints on [a person’s] freedom of action.” ’ ” Yount v. Patton, 710 F.2d 956, 961 (3d Cir.1983), cert. granted on other grounds, — U.S. -, 104 S.Ct. 272, 78 L.Ed.2d 254 (1983). When the individual has not been arrested, a finding of “custody” requires some indication that the officers would not have heeded his or her request to depart. Id. Patterson contends that the inquiry should expand beyond the freedom of the individual to depart, relying on United States v. McCain, 556 F.2d 253, 255 (5th Cir.1977), where the court held that the defendant's interrogation by customs agents was “custodial” for the period that her baggage was being searched because she was free to leave only if she was willing to abandon her luggage. We believe the situations are not analogous. In McCain, it was clear that defendant had been in custody when she was taken to a private room and strip searched. Since she was questioned thereafter without being told she was free to leave, this alone provided ample basis for the court’s conclusion that she was still in custody. In light of the totally disparate fact situation here, we need not decide whether we would adopt the Fifth Circuit’s additional statement that the detention of her luggage alone would be sufficient for a finding that she was in custody. Determinations as to whether a suspect is “in custody” must be made on a case-by-case basis, United States v. Mesa, 638 F.2d 582, 584 (3d Cir.1980), but there is no precedent and we see no reason to extend the definition of “custody” by a jus tertii approach. We hold, therefore, that the only relevant inquiry is whether Patterson, the person claiming entitlement to Miranda warnings, was free to leave the police station before his second interview. Since the fact that his girlfriend was also being questioned is legally irrelevant to Patterson’s claim that he was in custody, there was no reason to provide him with a federal evidentiary hearing to develop additional facts in connection with Stroman’s presence at the police station. Patterson’s" }, { "docid": "14183849", "title": "", "text": "a person is in custody even if in his own bedroom and in familiar surroundings. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). See also Mathis v. United States, 391 U.S. 1, 3-4, 88 S.Ct. 1503, 1504-05, 20 L.Ed.2d 381 (1968) (Miranda warnings must be given to one in custody even if questions do not pertain to case for which he is being held). Conversely Miranda warnings are not required when the suspect is not in custody. In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), a suspect not in custody was questioned by agents for three hours without prior Miranda warnings. The Court held that Miranda warnings were not required even though he was already the focus of the criminal investigation. Even when questioning occurs in the stationhouse, a suspect need not be given Miranda warnings if he went there voluntarily and there was no such restriction on his freedom as to render him in “custody.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). In Beheler an individual was questioned without Miranda warnings in the stationhouse after he had reported a homicide in which he was apparently involved. The police took him to the stationhouse but advised him he was not under arrest. Finding there had not been a restraint on freedom of movement such as is associated with formal arrest, the Court ruled that Miranda warnings were not needed. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), where the Court ruled that, since Miranda violations are not constitutional, evidence obtained after them is not subject to the “fruit of the poisonous tree” test, the Court observed that “the task of defining ‘custody’ is a slippery one, and ‘policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.’ ” Id., 105 S.Ct. at 1293. During Terry stops, the lower courts have held that Miranda warnings are not required. United States v. Jones, 543 F.2d 1171 (5th Cir.1976), cert. denied, 430 U.S. 957," }, { "docid": "11452099", "title": "", "text": "as its interpretation in subsequent eases, must be read in conjunction with the Miranda Court’s discussion of the custodial setting that formed the basis for the Miranda decision. Supreme Court decisions after Miranda have relied on this broad language to determine whether the suspect was in “custody.” See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam); Orozco v. Texas, 394 U.S. 325, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). In these cases, the Court construed this language as focusing on the suspect’s “freedom to come and go as he pleased.” In Orozco, police officers interrogated the defendant in his bedroom at approximately 4:00 a. m. The Court held that, because the defendant “was not free to go where he pleased but was under arrest,” 394 U.S. at 325, 89 S.Ct. at 1096, 22 L.Ed.2d 311, this was “custodial interrogation” despite the fact that it occurred at the defendant’s home and not at the police station. In Mathiason, the Court held that the defendant had not been subjected to “custodial interrogation” even though he had been questioned at the police station for approximately one half hour. Although the defendant was interrogated while he was alone in the police station, the presence of other factors convinced the Court that he was not in “custody.” He had come to the station voluntarily upon the police’s request; he was told that he was not under arrest, that he was free to leave, and he actually left after the questioning. Therefore statements he made during this interrogation were admissible despite the absence of Miranda warnings. The Court’s focus in these cases on the suspect’s freedom to come and go as he pleases must be considered in conjunction with the concerns underlying the custody requirement detailed above. The Miranda Court’s description of the custodial setting demonstrates that, at a minimum, the police must have immediate control over the suspect. Mathiason and Orozco stand for the proposition that when the police have a suspect within their immediate control, the proper inquiry to determine whether he is in “custody” is not" }, { "docid": "22476087", "title": "", "text": "of custody. Carter, 884 F.2d at 370. In any event, the fact that the purpose of the questioning is to further focus the investigation on the defendant “does not weigh heavily in [the] analysis.” Carter, 884 F.2d at 370, quoting, United States v. Jimenez, 602 F.2d 139, 145 (7th Cir.1979). F.Place The place of the interrogation, while relevant, has not developed as a determinative factor in custody analysis. Miranda tended to focus on the coercive aspects of the stationhouse interrogation, but subsequent authority indicates that deprivations of freedom may occur in places other than the police station. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (suspect in custody when questioned at home); United States v. Mahar, 801 F.2d 1477, 1500 (6th Cir.1986) (suspect in custody when questioned at place of employment); United States v. Beraun-Panez, 812 F.2d 578, 582, as amended 830 F.2d 127, 127-28 (9th Cir.1987) (suspect in custody when questioned on isolated range near where he was herding cattle). Conversely, interrogation which occurs at the police station or jailhouse may be non-custodial. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (suspect not in custody even though questioned at police station); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (prisoner questioned during incarceration for offense of false claims not in custody for purposes of interrogation concerning separate offense of tax evasion); United States v. Jorgensen, 871 F.2d 725 (8th Cir.1989) (suspect not in custody when questioned at F.B.I. offices). G.Length The length of the interrogation has been a similarly undeterminative factor in the analysis of custody. While Miranda was most obviously concerned with the “marathon” routine of questioning a suspect, custody has been found in relatively brief interrogations where the questioning is of a sort where “the detainee is aware that questioning will continue until he provides his interrogators the answers they seek.” Berkemer, 468 U.S. at 439, 104 S.Ct. at 3149; Beraun-Panez, 812 F.2d at 579 (questioning of suspect for approximately one hour together with other circumstances indicated custody); Mahar, 801 F.2d" }, { "docid": "2195547", "title": "", "text": "the agents were polite and courteous to him, and although none of them had ever explicitly told him he could not leave, nevertheless he felt that “as long as they had questions to ask me, I was to stay and answer them.” (R.T. 45). He said he “never felt like I should leave,” in view of the presence of the two or three agents in the room and the one he knew to be outside. (R.T. 46). The District Court seems to have accepted Bekowies’ testimony, stating that “apparently [Bekowies] thought he couldn’t leave, but he had no reasonable reason.” The motion to suppress was denied. The District Court purported to apply the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as interpreted by our decision in Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969). In Miranda, as is well known, the Supreme Court held that a suspect must be warned of his constitutional rights prior to any custodial interrogation. By custodial interrogation, the Court said, it meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” 384 U.S. at 444, 86 S.Ct. at 1612. The Court thus abandoned the inquiry, begun in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as to whether a criminal investigation had focused on the accused. After Miranda, the sole question is whether, at the time of his questioning by the police, the person questioned is “in custody.” Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). Custody will be found if the person questioned is effectively deprived of his freedom of movement, even though the interrogation occurs in his own home. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). In Lowe v. United States, supra, Judge Carter in a carefully considered opinion held for this court that we would determine the existence of custody by applying the objective, reasonable man test earlier" }, { "docid": "4007266", "title": "", "text": "has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); see also Anderson v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). The test used in determining whether a defendant was in custody is an objective one. United States v. Hall, 421 F.2d 540, 544 (2d Cir.1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970). It asks whether a reasonable person in the defendant’s position would have understood himself to be “subjected to restraints comparable to those associated with a formal arrest.” Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151; see generally 1 LaFave & Israel, Criminal Procedure § 6.6(c). This inquiry focuses upon the presence or absence of affirmative indications that the defendant was not free to leave. Compare Beckwith, 425 U.S. at 346-48, 96 S.Ct. at 1616-17 (IRS interview at defendant’s home not custody due to lack of coercion) with Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311 (1969) (questioning by police in defendant's bedroom in early morning hours deemed custody because defendant not free to leave). “Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the [interrogating] officers’ will and to confess.” Minnesota v. Murphy, 465 U.S. 420, 433, 104 S.Ct. 1136, 1145, 79 L.Ed.2d 409 (1984) (citing Miranda, 384 U.S. at 456-57, 86 S.Ct. at 1618-19). Decisions in this circuit have emphasized that in the absence of actual arrest, an interrogation is not “custodial” unless the authorities affirmatively convey the message that the defendant is not free to leave. See Campaneria v. Reid, 891 F.2d 1014, 1020 n. 1 (2d Cir.1989) (law enforcement officials must “act or speak in a manner that conveys the message that they would not permit the accused to leave”), cert. denied, - U.S.-, 111 S.Ct. 1419, 113 L.Ed.2d 471 (1991); Guarno, 819 F.2d at 31-32 (same); United States v. Hall, 421 F.2d at 545 (same). We have also stated" }, { "docid": "22417745", "title": "", "text": "Hired Man, in The PoetRY of RobeRT Frost 38 (Edward C. Latham ed., 1967). If a reasonable person is interrogated inside his own home and is told he is “free to leave,” where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be “free” to leave is a hollow right if the one place the suspect cannot go is his own home. Cf Crawford, 372 F.3d at 1060 (holding that an interrogation at an FBI office was not custodial because, inter alia, the defendant was told he was free to leave and “was, in fact, returned home at the end of the interview”). Similarly, a reasonable person interrogated inside his own home may have a different understanding of whether he is truly free “to terminate the interrogation” if his home is crawling with law enforcement agents conducting a warrant-approved search. He may not feel that he can successfully terminate the interrogation if he knows that he cannot empty his home of his interrogators until they have completed their search. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation. An interrogation conducted within the suspect’s home is not per se custodial. See Beckwith v. United States, 425 U.S. 341, 342-43, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). On the contrary, courts have generally been much less likely to find that an interrogation in the suspect’s home was custodial in nature. United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir.1994); 2 Wayne R. LaFave, Criminal Prooedure § 6.6(e) (3d ed.2007). The element of compulsion that concerned the Court in Miranda is less likely to be present where the suspect is in familiar surroundings. See Orozco v. Texas, 394 U.S. 324, 326, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Nevertheless, an interrogation in the suspect’s home may be found to be custodial under certain circumstances. See id. at 325-26, 89 S.Ct. 1095 (holding that an interrogation was custodial where four police officers arrived at the suspect’s home, entered the bedroom, and behaved as though" }, { "docid": "14183848", "title": "", "text": "and the other evidence defendants, including appellee, were lawfully arrested. II. THE TERRY STOP WAS NOT ACCOMPANIED BY “RESTRAINTS COMPARABLE TO A FORMAL ARREST.” Having held that the detention was a proper investigative stop, not a de facto arrest, we now inquire whether the nature of the detention, even though a Terry stop, involved “restraints comparable to a formal arrest” and so necessitated Miranda warnings. Streifel, 781 F.2d at 959-60; Ber-kemer v. McCarty, 468 U.S. at 441, 104 S.Ct. at 3151. The district court evidently felt that the presence of up to five officers and a dog, the loneliness of the site, the blocking of the Quinn vehicle, and the other circumstances already mentioned, amounted to restraints of this type. In speaking of “restraints comparable to a formal arrest,” we do not understand the Supreme Court to have required Miranda warnings in situations other than “custody” as traditionally understood. Since Miranda, the touchstone to the need for Miranda warnings has been whether or not a suspect is “in custody.” Miranda warnings must be given when a person is in custody even if in his own bedroom and in familiar surroundings. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). See also Mathis v. United States, 391 U.S. 1, 3-4, 88 S.Ct. 1503, 1504-05, 20 L.Ed.2d 381 (1968) (Miranda warnings must be given to one in custody even if questions do not pertain to case for which he is being held). Conversely Miranda warnings are not required when the suspect is not in custody. In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), a suspect not in custody was questioned by agents for three hours without prior Miranda warnings. The Court held that Miranda warnings were not required even though he was already the focus of the criminal investigation. Even when questioning occurs in the stationhouse, a suspect need not be given Miranda warnings if he went there voluntarily and there was no such restriction on his freedom as to render him in “custody.” California v. Beheler, 463 U.S. 1121, 1125," }, { "docid": "18136324", "title": "", "text": "the police station. As has been said: Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess.... [Cjustodial arrest thrusts an individual into ... “an interrogation environment ... created for no purpose other than to subjugate the individual to the will of the examiner.” Many of the psychological ploys discussed in Miranda capitalize on the suspect’s unfamiliarity with the officers and the environment.... Finally, the coercion inherent in custodial interrogation derives in large measure from an interrogator’s insinuations that the interrogation will continue until a confession is obtained. Minnesota v. Murphy, 465 U.S. 420, 433, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (citation omitted). The Supreme Court has addressed custodial interrogations outside the stationhouse in two cases. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), and Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Cf. Minnesota v. Murphy, supra. In Beckwith, two special agents from the IRS went to the defendant’s private residence at 8:00 a.m. Upon arrival they identified themselves as IRS agents and asked to speak to Beckwith. They were invited into the house and asked to wait while Beckwith finished dressing. Then Beckwith came out and sat down at the dining room table with the agents. They informed Beckwith that they were investigating a possible criminal tax fraud. Without giving a complete Miranda warning, they did advise him that under the Fifth Amendment to the Constitution of the United States, you cannot be compelled to answer any questions. Beck-with acknowledged that he understood his rights and was interviewed by the agents for nearly 3 hours. The conversation was described as friendly and relaxed and Beckwith was not pressed. At the conclusion of the interview the senior agent received permission from Beckwith to inspect certain records. The Court held that this interrogation did not constitute a custodial interrogation. Likewise, in Murphy, the Court held that an interrogation at the defendant’s office was not a custodial interrogation. 465 U.S. at 429-30,104 S.Ct." }, { "docid": "6952099", "title": "", "text": "the federal claim, see Washington v. Schriver, 255 F.3d 45, - (2d Cir.2001) (amended opinion) (leaving issue unresolved), the state courts sufficiently referred to Cruz’s constitutional claim. The Supreme Court explicitly referred to Miranda warnings in rejecting Cruz’s claim that such warnings were required, and, in affirming, both the Appellate Division, Cruz, 233 A.D.2d at 102, 649 N.Y.S.2d at 430, and the Court of Appeals, Cruz, 90 N.Y.2d at 962, 665 N.Y.S.2d at 47, 687 N.E.2d 1329, ruled that Cruz’s statements were \"not the product of custodial interrogation.” The Court of Appeals also explicitly ruled that the statements were admissible \"despite the lack of Miranda warnings.” Id. The state courts adequately indicated their awareness that Cruz was contending that his statements had been obtained without observance of his Fifth Amendment protections. , Justice White expressed his view that “if the investigative stop is sustainable at all, constitutional rights are not necessarily violated if pertinent questions are asked and the person is restrained briefly in the process.” Terry, 392 U.S. at 35, 88 S.Ct. 1868 (White, J., concurring). . The Court had previously ruled that custody, sufficient to require Miranda warnings, was present as to a suspect questioned while in prison, Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), and as to a suspect whom the police acknowledged was \"under arrest” when questioned at 4 a.m. in his home, Orozco v. Texas, 394 U.S. 324, 326-27, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). . Terry had authorized a pat-down (frisk) for weapons in non-“seizure” cases. 392 U.S. at 29, 88 S.Ct. 1868." }, { "docid": "22417746", "title": "", "text": "they have completed their search. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation. An interrogation conducted within the suspect’s home is not per se custodial. See Beckwith v. United States, 425 U.S. 341, 342-43, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). On the contrary, courts have generally been much less likely to find that an interrogation in the suspect’s home was custodial in nature. United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir.1994); 2 Wayne R. LaFave, Criminal Prooedure § 6.6(e) (3d ed.2007). The element of compulsion that concerned the Court in Miranda is less likely to be present where the suspect is in familiar surroundings. See Orozco v. Texas, 394 U.S. 324, 326, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Nevertheless, an interrogation in the suspect’s home may be found to be custodial under certain circumstances. See id. at 325-26, 89 S.Ct. 1095 (holding that an interrogation was custodial where four police officers arrived at the suspect’s home, entered the bedroom, and behaved as though the suspect was not free to leave while he was questioned). Miranda held that warnings were required when the person being interrogated was “in custody at the station or otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 477, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court held that certain essential salient features made situations in which the suspect was “otherwise deprived of his freedom of action” similar to those in which the suspect was taken into custody at the police station, id., specifically, “incommunicado interrogation of individuals in a police-dominated atmosphere.” Id. at 445, 86 S.Ct. 1602 (stating that the salient feature was that the suspect was “cut off from the outside world”). Drawing on this reasoning, when applying Miranda to the task of sorting a non-custodial in-home interrogation from a custodial one, our analysis considers the extent to which the circumstances of the interrogation turned the otherwise comfortable and familiar surroundings of the home into a “police-dominated atmosphere.” Our approach of using the “police-dominated atmosphere” as the" }, { "docid": "11452098", "title": "", "text": "to some degree. The custodial setting described by the Miranda Court was one in which the suspect was isolated in a police-dominated atmosphere where the police had immediate control over the suspect and thus could easily compel him to incriminate himself. Having barricaded himself inside the motel room with a gun, Mesa was not in such an atmosphere when he decided that he wanted to talk with Viater. I therefore conclude that Mesa was not in “custody” within the meaning of Miranda. I do not retreat from this conclusion because the presence of law enforcement officials surrounding the motel restricted Mesa’s freedom to leave the motel. The defendant argues that this fact establishes “custody” because Miranda requires warnings when the suspect is taken into custody or “otherwise deprived of his freedom by the authorities in any significant way.” 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d 694. The defendant further points out that subsequent cases have interpreted this language to focus on the suspect’s freedom to leave. This broad language, however, as well as its interpretation in subsequent eases, must be read in conjunction with the Miranda Court’s discussion of the custodial setting that formed the basis for the Miranda decision. Supreme Court decisions after Miranda have relied on this broad language to determine whether the suspect was in “custody.” See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam); Orozco v. Texas, 394 U.S. 325, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). In these cases, the Court construed this language as focusing on the suspect’s “freedom to come and go as he pleased.” In Orozco, police officers interrogated the defendant in his bedroom at approximately 4:00 a. m. The Court held that, because the defendant “was not free to go where he pleased but was under arrest,” 394 U.S. at 325, 89 S.Ct. at 1096, 22 L.Ed.2d 311, this was “custodial interrogation” despite the fact that it occurred at the defendant’s home and not at the police station. In Mathiason, the Court held that the defendant had not been subjected to" }, { "docid": "12360930", "title": "", "text": "against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point. Miranda, 384 U.S. at 477, 86 S.Ct. at 1629. In subsequent cases, the Supreme Court has firmly and unequivocally adhered to this limitation on the scope of Miranda. See, e.g., Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984); California v. Beheler, 463 U.S. 1121, 1123-24, 103 S.Ct. 3517, 3519-20, 77 L.Ed.2d 1275 (1983) (per curiam); Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980); Oregon v. Mathiason, 429 U.S. 492, 494-95, 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 (1977) (per curiam); United States v. Mandujano, 425 U.S. 564, 579-80, 96 S.Ct. 1768, 1777-78, 48 L.Ed.2d 212 (1976) (plurality); Beckwith v. United States, 425 U.S. 341, 345-48, 96 S.Ct. 1612, 1615-16, 48 L.Ed.2d 1 (1976); Orozco v. Texas, 394 U.S. 324, 326-27, 89 S.Ct. 1095, 1096-97, 22 L.Ed.2d 311 (1969); Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503, 1504-05, 20 L.Ed. 2d 381 (1968). The obligation of an intermediate appellate court is to follow, not contract or expand, Supreme Court precedent. Consequently, our cases have adhered rigidly to the mandate of the Supreme Court. United States v. Bush, 820 F.2d 858, 861-62 (7th Cir.1987); United States ex rel. Link v. Lane, 811 F.2d 1166, 1170 (7th Cir.1987); see also United States v. Costello, 830 F.2d 99, 102 (7th Cir.1987). Mr. Jackson, while under compulsion to testify at the bankruptcy proceedings, was not in police custody with respect to a criminal investigation. He offers no reason why he should not be subject to the rule" } ]

[ { "docid": "3234003", "title": "", "text": "This was the merchandise that you called me about. It covered hosiery and panty hose picked up from stores you took over. Although our conversation took place in May, the merchandise was not shipped out until the end of June, and it did not arrive until the 22d of June. The arrangements I had made to try to salvage some money out of this goods were washed out because of the length of time it took for this merchandise to be shipped out to me. . . . You had stated to me that since I took back the goods that wasn’t mine, only my hosiery would be put back into the racks this merchandise came out of. To date I still have not received any sheer-to-the-waist orders. Total Credits to West Texas Wholesale............. $15,885.20 To date we have charged off...................... 1,471.50 This leaves a balance due of...................... $14,413.70 In summation, we owe you: Sav-A-Stop, Jacksonville..... $ 9,895.40 Sav-A-Stop, Salem........... 2,421.22 West Texas Wholesale....... 14,413.70 Total ............ $26,730.32 I feel quite confident there will be no trouble washing these credits out in the coming season. Cordially yours, (s) Leonard Thomas LT:IA . Harry Rubin & Sons v. Consolidated Pipe Co. of America, 396 Pa. 506, 510, 153 A.2d 472 (1959). . Anderson, Uniform Commercial Code, § 2-201:51 at page 284 (2nd edition 1970). . Id. § 2-201:28 at page 268. . Harry Rubin & Sons v. Consolidated Pipe Co. of America, 396 Pa. 506, 512, 153 A.2d 472, 476 (1959), quoting from tlie Official Comments, Uniform Commercial Code, § 2-201. . 12A. Pa.Stat.Ann. § 1-205(3). . 12A. Pa.Stat.Ann. § 2-201(1). . Anderson, Uniform Commercial Code, § 2-201:24 at page 266 (1959)." } ]

[ { "docid": "937536", "title": "", "text": "Committe v. Green, supra, 329 U.S. at 161-62, 67 S.Ct. at 239; McKenzie v. Irving Trust Co., 323 U.S. 365, 371 n.2, 65 S.Ct. 405, 408 n.2, 89 L.Ed. 305 (1945); Fahs v. Martin, 224 F.2d 387, 396-97 (5th Cir. 1955); but cf. In Re Wallace Lincoln-Mercury Co., Inc., 469 F.2d 396, 400 n.1 (5th Cir. 1972) (“In this federal bankruptcy case the District Court is not obliged to use the choice-of-law methodology of the forum state....”) (dicta ). To the extent we are faced with this threshold question of whether a federal or a forum (Texas) choice of law rule applies, we see no need to resolve it. For reasons to be elaborated, we find that Texas, by its adoption of the UCC, has provided a choice of law rule specifically directed to contrac tual choice of law provisions by parties to transactions regulated by the UCC. Texas UCC § 1.105(a). If we were required to exercise independent federal judgment in choosing whether to apply Texas or Mississippi law to this UCC-regulated transaction involving significant contacts with both Texas and Mississippi, we would likewise look to UCC § 1-105(1), adopted in identical versions in both Texas and Mississippi (see note 3 supra) as part of a national effort to establish a nationally uniform law to govern the validity and effect of commercial transactions. Texas UCC § 1.102(b)(3); Mississippi UCC § 75-1-102(2)(c). As stated in In Re King-Porter Company, 446 F.2d 722, 732 (5th Cir. 1971), although in the context of a different issue arising in a bankruptcy proceeding: “The Uniform Commercial Code has been adopted in all but one state. It should generally be considered as the federal law of commerce — including secured transactions.” We therefore conclude, as did the panel in Fahs v. Martin, supra, that the application of an independent federal choice of law rule and of the forum state’s choice of law rule would lead to the same result, and thus “we do not determine which road the trial court should have travelled to arrive at the common destination.” Fahs v. Martin, 224 F.2d at" }, { "docid": "6996714", "title": "", "text": "UCC § 7C.04[3] (Matthew Bender 2003). For the reasons that follow, we reject this position. . For this reason, the Massachusetts cases on dragnet clauses were not themselves directly affected by the amended Massachusetts Commercial Code. See Safe Deposit Bank & Trust Co. v. Berman, 393 F.2d 401, 403 (1st Cir.1968) (noting that \"Massachusetts law has shown itself sensitive to” certain considerations in the real estate mortgage context, \"[b]ut in this case we deal with the Uniform Commercial Code and must look to its terms and spirit for guidance”). . This new requirement at least partially mitigates the concern of one commentator that the approach in the Official Commentary does not \"protect debtors from 'surprise' security agreements where the circumstances suggest that the debtor did not really consent to the interest.” Secured Transactions Under the UCC, supra, § 2.04. To the extent that the scope of a security agreement is a \"surprise” to a debtor because of commercially unreasonable actions taken by the creditor, then the dragnet clause may be limited by operation of the duty of good faith rather than an artificial and unpredictable requirement of relatedness. . There was some testimony at trial that the $50,000 deposit Pride made in connection with CFC’s release of its security interest in Pride Kia’s and Pride Ford's assets was actually more than 1.5% of the value of the outstanding installment contracts for those two dealerships. . CFC first insisted on 3% of the value of the outstanding contingent liabilities and then retreated to 1.5%." }, { "docid": "6074584", "title": "", "text": "We disagree with the district court’s conclusion that the four year limitations period provided in Texas UCC section 2.725 is substantive rather than procedural. As a general proposition, statutes of limitation are regarded as procedural. Gaston v. B.F. Walker, Inc., 400 F.2d 671, 673 (5th Cir.1968); 3 W. Hawkland, Uniform Commercial Code Series § 2-725:01, at 477 (1982). Texas courts consider a limitation's period substantive in a particular circumstance: when the statute that creates a right not existing at common law also incorporates a limitation upon the time within which a suit is to be brought to enforce that right. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 231, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958). In such an instance, the “limitation qualifies the right so that it becomes a part of the substantive law rather than procedural____” 158 Tex. at 201, 309 S.W.2d at 231. The UCC provisions pertaining to implied and express warranties do not create new rights not existing at common law. A cause of action predicated on the implied warranty of merchantable quality was developed at English common law. Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rev. 117-18 (1943). Before Texas adopted the UCC in 1968, its courts recognized a cause of action for breach of an implied warranty of product quality. See, e.g., Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609,164 S.W.2d 828 (1942); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). Similarly, the action for breach of an express warranty relating to the quality of goods was also present at common law and in pre-UCC Texas decisions. See T.F. Plucknett, A Concise History of the Common Law 641 (5th ed. 1956); Prosser, supra, at 119-20; Donelson v. Fairmont Foods Co., 252 S.W.2d 796 (Tex.Civ.App. 1952, writ refd n.r.e.); Seale v. Schultz, 3 S.W.2d 563 (Tex.Civ.App.1927, no writ). Thus, the actions for breach of implied and express warranties were recognized at common law and by Texas courts before Texas adopted the UCC. Therefore, section 2.725, the limitation period for the UCC remedies" }, { "docid": "18807859", "title": "", "text": "which follow. An essential element of any preference action is that a transfer of property of the debtor be made on or within 90 days before the date of the filing of the petition. Bankruptcy Code § 547(b)(4)(A). Transfer is a defined term and means “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest.” Bankruptcy Code § 101(40). See S.R. No. 95-989, 95th Cong. 2d Sess. 27 U.S.Code Cong. & Admin.News, 1978, p. 5787 (1978) (“The definition of transfer is as broad as possible”); and 2 Collier on Bankruptcy (15th ed.) ¶ 101.41. Bankruptcy Code § 547(e)(2)(A) states that a transfer is made “at the time such transfer takes effect between the transfer- or and the transferee, if such transfer is perfected at, or within 10 days after, such time.” (Emphasis added). “Though the issue of when a transfer is complete is a federal question, it must be decided by reference to state law.” Olsen-Frankman Livestock Marketing Service, Inc. v. Citizens National Bank, 4 B.R. 809, 812-813 (D.Minn.1980), citing McKenzie v. Irving Trust Co., 323 U.S. 365, 65 S.Ct. 405, 89 L.Ed. 305 (1945). With respect to checks, state law may be found in New York’s version of the Uniform Commercial Law, N.Y. UCC 1-101 et seq. (McKinney’s 1981). A check is an instrument. N.Y. UCC § 3-102. In order for an instrument to be effective it must be delivered. First Security Bank of Bozeman v. Goddard, 181 Mont. 407, 593 P.2d 1040, 1044 (1979). “Delivery” means as to instruments “voluntary transfer of possession.” N.Y. UCC § 1-201(14). The general rule is that delivery by mail is complete at the time of mailing when the check is mailed at the instance of the payee. Brady on Bank Checks § 5.7 at 5-15 (5th ed. 1979). See also McKenzie v. Irving Trust Co., supra; First Security Bank of Bozeman v. Goddard, supra. As there is nothing to suggest that this case is not governed by the general rule," }, { "docid": "22088508", "title": "", "text": "business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Pennsylvania adopted this provision in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). . PGS did not advance claims under the Uniform Commercial Code for breach of warranty. Indeed, if it had done so, the four year statute of limitations in U.C.C. § 2-725 may well have barred the claims. 12A Penna.Stat.Ann. § 2-725 (Purdon’s 1970). . Prosser, The Fall of the Citadel, 50 Minn.L. Rev. 791 (1966); Prosser, The Assault on the Citadel, 69 Yale L.J. 1099 (1960). . Dean Prosser first introduced a draft of § 402A to the American Law Institute (ALI) in 1961, but the ALI did not embrace it until 1964. See Titus, Restatement (Second) of Torts Section 402A and the Uniform Commercial Code, 22 Stan.L.Rev. 713, 713-14 (1970). Pennsylvania then adopted § 402A as the law of the state in 1966. See note 1, supra. . Dean Prosser characterized the law of product liability as a “hybrid, having its commencement in contract and its termination in tort.” W. Prosser, Law of Torts 648-51 (3d ed. 1964). . Prosser, Assault on the Citadel, supra note 3. . See Prosser, Fall of the Citadel, supra note 3. . Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore Unconstitutional? 42 Tenn.L.Rev. 123 (1974). . See Santor v. A&M Karagheusian, Inc., 44 N.J. 52, 64, 207 A.2d 305 (1965). . Wade, supra note 8, at 127. . Wade, supra note 8, at 127. The UCC implied warranties of merchantability and fitness for a particular purpose, §§ 2-314 and 2-315, are designed to protect these interests. . The leading case propounding this approach is" }, { "docid": "8311533", "title": "", "text": "Industries v. Raymond International, Inc., Me., 325 A.2d 66, 77, n. 7, 15 UCC Rep. 328, 339, n.7 (1974); In re Lufkin, 15 UCC Rep. 708, 710 (D.Me.B.J.1974). Cf. Leaderbrand v. Central State Bank of Wichita, 202 Kan. 450, 450 P.2d 1, 6 UCC Rep. 172, 178 (1969) [common law principles governing principal and agent supplement Code]. . See Jenkins v. National Village Bank of Bowdoinham, 58 Me. 275, 278 (1876); Heinicke Instruments Co. v. Republic Corp., 543 F.2d 700, 704, 20 UCC Rep. 1, 5 (9th Cir. 1976), rev’g. Heinicke Instruments Co. v. Block, 14 UCC Rep. 167 (D.Or.1974). See also J. Story, Bailments; § 2 (1870); Restatement of Security, § 1, Comment f; Second Restatement of Agency, § 175(1). . See Jenkins v. National Village Bank of Bowdoinham, 58 Me. 275, 277-78 (1870). See also Restatement of Security, §§ 14, 22, 23 & 37. The stock pledge agreement between the debtors and DTC [Defendant’s Ex. # 4] renders the encumbrancing or other transfer of the securities an event of default. DTC agrees to discharge the pledge upon performance. . See note 66 supra. See also UCC § 9-305, Comment 2: “possession may be by the secured party himself or by an agent on his behalf....” (emphasis added). . See note 66 supra. . UCC § 9-305 is in Part 3 of Article 9— “Rights of Third Parties; Perfected and Unper-fected Security Interests; Rules of Priority.” See UCC §§ 9-301 — 9-318. . Restatement of Security, § 11, Comment 2. . See 1A Coogan, § 6C.08[2], at 6C-132; Coogan, Security Interests in Investment Securities Under Revised Article 8 of the Uniform Commercial Code, 92 Harv.L.Rev. 1013, 1056-58 (1979). . DTC received notification from Hale upon service of the Hale complaint in early February, 1980. See UCC § 1-201(26) & (27). . DTC received copies of the various loan documents upon which the Hale interest is predicated, which was sufficient notification of the secured party’s interest under UCC § 9-305. Cf. In re Copeland, 531 F.2d 1195, 1205, 18 UCC Rep. 833 (3d Cir.1976) [escrow agent as bailee]. . 1A" }, { "docid": "23182337", "title": "", "text": "Subsequent to the submission of briefs in this appeal, the Eighth Circuit in Cargill, Incorporated v. Weston, 520 F.2d 669 (8th Cir. 1975), held that a motion for a directed verdict was a requisite to a motion for judgment notwithstanding the verdict. In that case, however, the defendant had also failed to move for judgment notwithstanding the verdict. . See also Jack Cole Co. v. Hudson, 409 F.2d F.2d 188 (5th Cir. 1969), and Roberts v. Pierce, 398 F.2d 954 (5th Cir. 1968). . Anderson, Repudiation of a Contract Under the Uniform Commercial Code, 14 DePaul L.Rev. 1, 3 (1964). . In Note, A Right to Adequate Assurance of Performance in All Transactions: U.C.C. § 2-609 Beyond Sales of Goods, 48 S.Cal.L.Rev. 1358, 1375-87 (1975), the author supports a case for either judicial expansion or legislative imposition of the § 2-609 provisions as to contracts not covered by the UCC. The Note, however, concedes that other than a dictum in Berry’s Sons Co. v. Monark Gasoline & Oil Co., 32 F.2d 74 (8th Cir. 1929), no subsequent case has held that there would be an implied term of the contract if the parties have not expressly included such a provision. . See, for example Pineau v. White, 135 A.2d 716 (N.H.1957), involving a contract for the installation of a furnace; Apeco Corporation v. Bishop Mobile Homes, Inc., 506 S.W.2d 711 (Tex.Civ.App. 1974), sale of a mobile home; Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974), a contract for the seller to install bowling equipment in a bowling alley. But, compare, Schenectady Steel Co., Inc. v. Bruno Trimpoli General Construction Co., Inc., 43 App.Div.2d 234, 350 N.Y.S.2d 920 (1974). In Bonebrake, the court indicated that the rendering of service in connection with a sale did not remove it from the coverage of the UCC and enunciated a test, which we approve, for determining the inclusion or exclusion of transactions in goods covered by nondivisible mixed contracts (i. e., goods and services) was whether their predominant factor, their thrust, their purpose, reasonably stated, was the rendition of service with goods incidentally" }, { "docid": "8311534", "title": "", "text": "discharge the pledge upon performance. . See note 66 supra. See also UCC § 9-305, Comment 2: “possession may be by the secured party himself or by an agent on his behalf....” (emphasis added). . See note 66 supra. . UCC § 9-305 is in Part 3 of Article 9— “Rights of Third Parties; Perfected and Unper-fected Security Interests; Rules of Priority.” See UCC §§ 9-301 — 9-318. . Restatement of Security, § 11, Comment 2. . See 1A Coogan, § 6C.08[2], at 6C-132; Coogan, Security Interests in Investment Securities Under Revised Article 8 of the Uniform Commercial Code, 92 Harv.L.Rev. 1013, 1056-58 (1979). . DTC received notification from Hale upon service of the Hale complaint in early February, 1980. See UCC § 1-201(26) & (27). . DTC received copies of the various loan documents upon which the Hale interest is predicated, which was sufficient notification of the secured party’s interest under UCC § 9-305. Cf. In re Copeland, 531 F.2d 1195, 1205, 18 UCC Rep. 833 (3d Cir.1976) [escrow agent as bailee]. . 1A Coogan § 6C.08[1][d], at p. 6C-132. See Coogan, Security Interests in Investment Securities Under Revised Article 8 of the Uniform Commercial Code, 92 Harv.L.Rev. 1013, 1057 (1979). See also In re Copeland, 531 F.2d 1195, 1204, 18 UCC Rep. 833, 843 (3d Cir.1976). . In re Copeland, 531 F.2d 1195, 1204, 18 UCC Rep. 833, 843 (3d Cir.1976); In re North American Builders, Inc., 320 F.Supp. 1229, 8 UCC Rep. 1132, 1135 (D.Neb.1970); In re Black Watch Farms, Inc., 9 UCC Rep. 151, 155 (S.D.N.Y.B.J.1971). See note 60 supra & accompanying text. Cf. In re Dolly Madison Industries, Inc., 351 F.Supp. 1038, 1042, 11 UCC Rep. 926, 931 (E.D.Pa.1972) [escrow agent may serve only the role stipulated in escrow agreement], aff'd. per curiam, 480 F.2d 917 (3d Cir.1973). . “Historically and prior to the Code, possession of collateral by a creditor or third party has served to impart notice to prospective creditors of the possessor’s possible interest therein.” In re Copeland, 531 F.2d 1195, 1203, 18 UCC Rep. 833, 843 (3d Cir.1976). (Emphasis added.) Hale" }, { "docid": "22913115", "title": "", "text": "difficult in the entire Code, and well it may be said that the product as it finally reads is not altogether satisfactory.” Duesenberg & King, Sales and Bulk Transfers under the Uniform Commercial Code, (Vol. 3, Bender’s Uniform Commercial Code Service) § 3.03, at 3-12 (1969). Despite the lack of clarity in its language, Section 2-207 manifests definite objectives which are significant in the present case. As Official Comment No. 1 indicates, UCC § 2-207 was intended to apply to two situations: “The one is where an agreement has been reached either orally or by informal correspondence between the parties and is followed by one or both of the parties sending formal acknowledgments or memoranda embodying the terms so far as agreed upon and adding terms not discussed. The other situation is one in which a wire or letter expressed and intended as the closing or confirmation of an agreement adds further minor suggestions or proposals such as ‘ship by Tuesday,’ ‘rush,’ ‘ship draft against bill of lading inspection allowed,’ or the like.” T.C.A. § 47-2-207 [UCC § 2-207], Official Comment 1. Although Comment No. 1 is itself somewhat ambiguous, it is clear that Section 2-207, and specifically Subsection 2-207(1), was intended to. alter the “ribbon matching” or “mirror” rule of common law, under which the terms of an acceptance or confirmation were required to be identical to the terms of the offer or oral agreement, respectively. 1 W. Hawkland, supra, at 16; R. Nords- trom, Handbook of the Law of Sales, Sec. 37, at 99-100 (1970). Under the common law, an acceptance or a confirmation which contained terms additional to or different from those of the offer or oral agreement constituted a rejection of the offer or agreement and thus became a counter-offer. The terms of the counter-offer were said to have been accepted by the original offeror when he proceeded to perform under the contract without objecting to the counter-offer. Thus, a buyer was deemed to have accepted the seller’s counter-offer if he took receipt of the goods and paid for them without objection. Under Section 2-207 the" }, { "docid": "10474644", "title": "", "text": "61 S.Ct. 1020, 85 L.Ed. 1477 (1941). . Auten v. Auten, 308 N.Y. 155, 160, 124 N.E.2d 99, 101-02 (1954); Intercontinental Planning, Ltd. v. Daystrom Inc., 24 N.Y.2d 372, 382, 300 N.Y.S.2d 817, 825, 248 N.E.2d 576, 582 (1969). . Auten v. Auten, supra, 308 N.Y. at 160, 124 N.E.2d at 102. . See American Home Assur. Co. v. Employers Mut. of Wausau, 77 A.D.2d 421, 425, 434 N.Y.S.2d 7, 9 (1980), aff’d, 54 N.Y.2d 874, 444 N.Y.S.2d 917, 429 N.E.2d 424 (1981) (although no longer determinative, place of contracting is significant contact). . See generally 19 N.Y.Jur.2d Conflict of Laws § 35 at 614-15 (1982) (one goal of grouping of contacts approach to conflicts problems is to give effect to probable intent of the parties). . See Davenport, How to Handle Sales of Goods: The Problem of Conflicting Purchase Orders and Acceptance and New Concepts in Con tract Law, in Uniform Commercial Code Handbook 72-73 (1964). . CBS, Inc. v. Auburn Plastics, Inc., 67 A.D.2d 811, 413 N.Y.S.2d 50 (1979); 2 R. Anderson, Uniform Commercial Code § 2-207:11 at 277 (3d ed. 1982). . See Luedtke Engineering Co. v. Indiana Limestone Co., 740 F.2d 598, 600 (7th Cir.1984); John Thallon & Co. v. M & N Meat Co., 396 F.Supp. 1239, 1243 (E.D.N.Y.1975). . See 2 R. Anderson, Uniform Commercial Code, supra, § 2-207:39 at 297. . See Bausch & Lomb v. Monaco Electronics, Inc., 103 Misc.2d 966, 427 N.Y.S.2d 357 (1980), aff'd, 109 Misc.2d 365, 445 N.Y.S.2d 415 (App.Div.1981); UCC § 2-207 Official Comment 5. . See Charles J. King, Inc. v. Barge “LM-10, ” 518 F.Supp. 1117, 1120-21 (S.D.N.Y.1981); Resch v. Greenlee Bros. & Co., 128 Wis.2d 237, 381 N.W.2d 590 (Ct.App.1985). . 297 F.2d 497 (1st Cir.1962). . Id. at 500. . See Dorton v. Collins & Aikman Corp., 453 F.2d 1161, 1168 & n. 5 (6th Cir.1972); Leonard Pevar Co. v. Evans Pdts. Co., 524 F.Supp. 546, 551-52 (D.Del.1981); Ebasco Services, Inc. v. Pennsylvania Power & Light Co., 402 F.Supp. 421, 436-38 (E.D.Pa.1973); see also Murray, Intention over Terms: An Exploration of UCC 2-207 &" }, { "docid": "18457438", "title": "", "text": "that time your verbal comments concerning the commitment were recorded in our supplementary letter of October 1, 1964 which, together with our letter of September 16, 1964 adding boiler feed pump turbines and the original July 21, 1964 formed the basis of the commitment, [sic] There was no doubt in our minds as we’re sure there was none in yours at the time of commitment as to the basis on which the commitment was made. . See discussion accompanying notes 36-49, infra. . See, e. g., Dorton v. Collins & Aikman Corporation, 453 F.2d 1161, 1165 (6th Cir. 1972): This section of the UCC has been described as a “murky bit of prose,” Southwest Engineering Co. v. Martin Tractor Co., 205 Kan. 684, 694, 473 P.2d 18, 25 (1970), as “not too happily drafted,” Roto-Lith Ltd. v. E. P. Bartlett & Co., 297 F.2d 497, 500 (1st Cir. 1962), and as “one of the most important, subtle, and difficult in the entire Code, and well it may be said that the product as it finally reads is not altogether satisfactory.” Duesenberg & King, Sales and Bulk Transfers under the Uniform Commercial Code, (Vol. 3, Bender’s Uniform Commercial Code Service) § 3.03, at 3-12 (1969). . . The Court, noting that plaintiff had accepted the goods with knowledge of the conditions specified in the acknowledgement proceeded to a second holding: that plaintiff (buyer) became bound by the acknowledgement, and thus affirmed judgment for the seller. . See, e. g., Notes and Comments at 111 U.Pa.L.Rev. 132 (1962); 57 Nw.UL.Rev. 477 (1962); 76 Harv.L.Rev. 1481 (1963); 38 U.Chi.L.Rev. 540 (1963). . Although Pennsylvania was the first state to enact the TJCC (in 1954), we have found only two cases which interpret § 2-207 as part of Pennsylvania’s law. One, Just Born, Inc. v. Stein, Hall & Co., 59 Pa.D. & C.2d 407 (C.P., Northampton Co. 1971) specifically rejects Roto-Lith’s construction of § 2-207 in a factual situation quite similar to that found in Dorton. The other, Air Products and Chem., Inc. v. Fairbanks Morse, Inc., 58 Wis. 2d 193, 206 N.W. 414" }, { "docid": "10474645", "title": "", "text": "Commercial Code § 2-207:11 at 277 (3d ed. 1982). . See Luedtke Engineering Co. v. Indiana Limestone Co., 740 F.2d 598, 600 (7th Cir.1984); John Thallon & Co. v. M & N Meat Co., 396 F.Supp. 1239, 1243 (E.D.N.Y.1975). . See 2 R. Anderson, Uniform Commercial Code, supra, § 2-207:39 at 297. . See Bausch & Lomb v. Monaco Electronics, Inc., 103 Misc.2d 966, 427 N.Y.S.2d 357 (1980), aff'd, 109 Misc.2d 365, 445 N.Y.S.2d 415 (App.Div.1981); UCC § 2-207 Official Comment 5. . See Charles J. King, Inc. v. Barge “LM-10, ” 518 F.Supp. 1117, 1120-21 (S.D.N.Y.1981); Resch v. Greenlee Bros. & Co., 128 Wis.2d 237, 381 N.W.2d 590 (Ct.App.1985). . 297 F.2d 497 (1st Cir.1962). . Id. at 500. . See Dorton v. Collins & Aikman Corp., 453 F.2d 1161, 1168 & n. 5 (6th Cir.1972); Leonard Pevar Co. v. Evans Pdts. Co., 524 F.Supp. 546, 551-52 (D.Del.1981); Ebasco Services, Inc. v. Pennsylvania Power & Light Co., 402 F.Supp. 421, 436-38 (E.D.Pa.1973); see also Murray, Intention over Terms: An Exploration of UCC 2-207 & New Section 60, Restatement of Contracts, 37 Fordham L.Rev. 317, 329 (1969) (“The Roto-Lith case has been extensively noted in the law reviews and the consensus is clear that the case is not a reliable precedent.”) (footnotes omitted). . 72 A.D.2d 715, 422 N.Y.S.2d 79 (1979), aff'd, 50 N.Y.2d 951, 431 N.Y.S.2d 459, 409 N.E.2d 933 (1980). . Id. . Section 2-201 (1) and (2) provide: (1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. (2) Between merchants if within a reasonable time a" }, { "docid": "11831316", "title": "", "text": "test is “wheth er the seller assumes to assert a fact of which the buyer is ignorant, or whether he merely states an opinion or expresses a judgment about a thing as to which they may each be expected to have an opinion and exercise a judgment.” Wedding v. Duncan, 310 Ky. 374, 378, 220 S.W.2d 564, 567 (1949). See Consumer Protection Under Warrant Law, supra, at 243. The mere existence of a warranty is insufficient to sustain an action for breach of an express warranty. The warranty must be “part of the basis of the bargain” between the parties. Ky.Rev.Stat.Ann. § 355.2-313(1)(a) (Baldwin). A warranty is the basis of the bargain if it has been relied upon as one of the inducements for purchasing the product. See Ky.Rev.Stat.Ann. § 355.2-313(1)(a), Comment 1(C) (Baldwin); Consumer Protection Under Warranty Law, supra, at 243; Van Deren Hardware Co. v. Preston, 224 Ky. 170, 5 S.W.2d 1052, 1053 (Ky.1928). See also Hagenbuch v. Snap-on-Tools Corp., 339 F.Supp. 676, 680, 10 UCC Rep. 1005 (D.N.H. 1972); Stamm v. Wilder Travel Trailers, 44 Ill.App.3d 530, 3 Ill.Dec. 215, 358 N.E.2d 382, 20 UCC Rep. 1142 (App.Ct.1972); Bender’s UCC Service, Duesenberg & King, Sales and Bulk Transfers § 601, n.2 (Matthew Bender & Co. 1980). But see, Interco, supra, 19 UCC Rep. at 469. A buyer is not under a duty to investigate the seller’s representations; he may accept them at face value. See Interco, supra, 19 UCC Rep. at 469; City Machine & Manufacturing Co. v. A. & A. Machinery Corp., 4 UCC Rep. 461, 465 (E.D.N.Y.1967). However, a buyer may not rely blindly on a statement or affirmation that he knows is incorrect. See City & Manufacturing Co., supra, at 465; Royal Business Machines, supra, 30 UCC Rep. at 472. A buyer does not disregard any special knowledge he possesses or his accumulated experience with a product in determining whether to enter the bargain. Id.; Jans-sen, supra, 272 N.E.2d at 488. Consequently, a statement known to be incorrect cannot be an inducement to enter a bargain. City Machine & Manufacturing Co., supra. An incorrect" }, { "docid": "23632053", "title": "", "text": "means for creating rather than preventing fraud, Harry Rubin & Sons, Inc. v. Consolidated Pipe Co., 396 Pa. 506, 153 A.2d 472, 476 (1959), and there have been calls for its total repeal. See J. Murray, Murray On Contracts § 68, at 302 (3d ed.1990). Serious considerations therefore counsel courts to be careful in construing its provisions so that undesirable rigidity does not result in injustice. The limited scope of section 2-201 should not be overlooked. “It is also clear that a sufficient writing merely satisfies the statute of frauds under the Code, i.e., it does not, in itself, prove the terms of the contract.” J. Murray, Murray on Contracts § 74, at 337 (3d ed.1990). See Conaway v. 20th Century Corp., 491 Pa. 189, 420 A.2d 405, 411-12 (1980); Rubin, 396 Pa. 506, 153 A.2d at 476 (1959) (“All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction.”); 13 Pa.Cons.Stat.Ann. § 2201 comment 1 (Purdon 1984). Moreover, compliance with the statute of frauds must be distinguished from enforcement of a remedy. At this point we focus on the statute of frauds, reserving for discussion enforcement under § 2-204. See Part IV infra. Courts have generally found that a quantity term must be stated for compliance with the Code, and commentators have agreed. See 2 R. Anderson, Uniform Commercial Code § 2-201:110, at 68 (3d ed.1982) (1970) (“[t]he requirement that the writing state a quantity is mandatory, and a writing which fails to do so does not satisfy the statute”); J. Calamari & J. Per-illo, The Law of Contracts § 19-34, at 826 (3d ed.1987) (memorandum “must specify a quantity”); 2 E. Farnsworth, Farnsworth on Contracts § 6.7, at 141 (2d ed. 1990) (UCC “significantly relaxes the requirement that the memorandum state all the essential terms by insisting only that it state the quantity of goods”). A contrary view, however, has been advanced. In her article The Weed and the Web: Section 2-201’s Corruption of The U. C. C. ’s Substantive Provisions — The Quantity Problem, 1983" }, { "docid": "6996713", "title": "", "text": "of this appeal. . The analysis would be the same, however, even were we guided by Rhode Island law, the other potential source of law. This is because Rhode Island, like Massachusetts (and every other state), recently adopted the revised provisions of Article Nine on which we rely for our analysis. Compare Mass. Gen. Laws ch. 106, § 9-204, with R.I. Gen. Laws § 6A-9-204. .The Uniform Commercial Code was first adopted by Massachusetts in 1957. See Mass. Gen. Laws ch. 106, § 1-101. A revised version of Article Nine that contained a provision authorizing dragnet clauses was adopted in 1979. See Mass. Gen. Laws ch. 106, § 9-204 (1979) (amended 2001). . Pride, relying on one commentator, urges in its supplemental briefing that \"the best approach is to disregard Comment 5 to Revised Section 9-204 as unsupported by the statutory text of that provision” because otherwise \"the pressure will be on the courts to find equity doctrines to limit the exalted position of the secured creditor under Revised Article 9.” Secured Transactions Under the UCC § 7C.04[3] (Matthew Bender 2003). For the reasons that follow, we reject this position. . For this reason, the Massachusetts cases on dragnet clauses were not themselves directly affected by the amended Massachusetts Commercial Code. See Safe Deposit Bank & Trust Co. v. Berman, 393 F.2d 401, 403 (1st Cir.1968) (noting that \"Massachusetts law has shown itself sensitive to” certain considerations in the real estate mortgage context, \"[b]ut in this case we deal with the Uniform Commercial Code and must look to its terms and spirit for guidance”). . This new requirement at least partially mitigates the concern of one commentator that the approach in the Official Commentary does not \"protect debtors from 'surprise' security agreements where the circumstances suggest that the debtor did not really consent to the interest.” Secured Transactions Under the UCC, supra, § 2.04. To the extent that the scope of a security agreement is a \"surprise” to a debtor because of commercially unreasonable actions taken by the creditor, then the dragnet clause may be limited by operation of the" }, { "docid": "1339136", "title": "", "text": "Plywood Co., Inc., 27 B.R. 209 (D.Or.1982); In the matter of McLouth Steel Corp., 22 B.R. 722 (E.D.Mich.1982); In re Western Farmers Ass’n., 6 B.R. 432 (W.D.Wash.1980); Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38 (9th Cir.1979); Kennett-Murray Co. v. Pawnee National Bank, 26 UCCRS 686 (Ct.App.Ok.1979); In re Bowman, 25 UCCRS 738 (N.D.Ga.1978); In the Matter of Samuels & Co., 526 F.2d 1238 (5th Cir.), cert. denied, Stowers v. Mahon, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); in re Daley, Inc., 17 UCCRS 433 (D.Mass.1975); First-Citizens Bank & Trust Co. v. Academic Archives, Inc., 8 UCCRS 1197 (Ct.App.N.C.1971); In re Haywood Woolen Co., 3 UCCRS 1107 (D.Mass.1967). . KRS 355.1-201(19). . In re Samuels, supra at pp. 1243-44; In re Bowman, supra at p. 743. . The First National Bank of Henderson is the agent bank. . Boarman, Gilíes, Payne and Gregory Memorandum in Response to Motion of Harris for Partial Summary Judgment, p. 23. . See note 20 supra. . KRS 355.9-312. . See note 19 supra. . See e.g. UCC §§ 2-403, 3-302, 3-305, 6-110, 7-501, 7-502, 8-301, 8-302, 9-307, 9-309. . In re Landy Beef Co., Inc., 30 B.R. 19 (D.Mass.1983); In re HRT Industries, Inc., 29 B.R. 861 (S.D.N.Y.1983); In re Tom Woods Used Cars, Inc., 24 B.R. 529 (E.D.Tenn.1982); Matter of Deephouse Equipment Co., Inc., 22 B.R. 255 (D.Conn.1982); In re Koro Corp., 20 B.R. 241 (1st Cir.1982); In re Ateco Equipment, Inc., 18 B.R. 917, (W.D.Pa.1982); In re Contract Interiors, Inc., 14 B.R. 670 (E.D.Mich.1981); In re Original Auto Parts Distributors, 9 B.R. 469 (S.D.N.Y.1981). . Those courts allowing cash reclamation under Section 2-507 have also required the 2-702 ten-day demand. See Szabo v. Vinton, supra at 4; Sorrels v. Texas Bank & Trust, supra at 1000; In re Helms Veneer Corp., supra at 846; In re Koro Corp., supra at 243. But see Burk v. Emmick, 637 F.2d 1172 (8th Cir.1980). (This case involved a dispute between the seller and the defaulting buyer that was not controlled by UCC § 2-702. The Court noted that" }, { "docid": "23215560", "title": "", "text": "Inc., supra. In the second place, while it is perhaps understandable that a court, might erroneously refer to the Statute of Frauds to determine whether a term in a written confirmation of an oral offer or agreement is binding on the recipient of the confirmation, there is no logical, much less statutory, explanation for a reference to the Statute of Frauds where, as here, it is agreed that no oral transaction is at issue. Finally, and most importantly, one of the stated purposes of the Uniform Commercial Code is “to make uniform the law among the various jurisdictions.” Section 1-102(2)(c). It must be assumed, therefore, that the New York Court of Appeals would interpret Sections 2-201 and 2-207 with the interpretation given those sections by other jurisdictions in mind. The parties have not directed our attention to and we have been unable to discover any decision outside of New York which has held that the “battle of forms” is governed by the UCC Statute of Frauds provision, Section 2-201, not by Section 2-207, Additional Terms in Acceptance or Confirmation. We are convinced, therefore, that the Court of Appeals would not adopt an aberrant position, such as the one apparently set forth in Klockner, which has the effect of virtually reading Section 2-207 out of the Uniform Commercial Code. . But see Roto-Lith, Ltd. v. F. P. Bartlett & Co., 297 F.2d 497 (1st Cir. 1962) (holding that inclusion of warranty disclaimer in seller’s acknowledgment form prevented the formation of a contract under Section 2-207(1)). The Roto-Lith decision has been subjected to severe criticism by the commentators. See, e. g., Duesenberg & King, supra, at § 3.04[1]; White & Summers, supra, at 28; Davenport, supra, at 85. And, more importantly, Roto-Lith has not been followed in numerous decisions involving the “battle of the forms” under Section 2-207. See, e. g., the cases cited in the text accompanying this note. . In Gaynor-Stafford Industries, Inc. v. Mafco Textured Fibers, 52 A.D.2d 481, 384 N.Y.S.2d 788, 19 UCC Rep.Serv. 740 (N.Y.Sup.Ct.1976), there appears to have been expressly conditional language in the seller’s acknowledgment" }, { "docid": "23215538", "title": "", "text": "the parties and signed by the party against whom enforcement is sought . (2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received. Several New York lower court decisions have apparently held that under Section 2 — 201, where there has been an oral offer or agreement followed by a written confirmation containing an additional arbitration term and where the merchant recipient of the confirmation has reason to expect that a provision for arbitration would be included in any written confirmation of an oral offer or agreement, the arbitration provision becomes a part of the parties’ agreement unless notice of objection is given within the prescribed period. See, e. g., Trafalgar Square, Ltd. v. Reeves Brothers, Ltd., 35 A.D.2d 194, 315 N.Y.S.2d 239 (1970); In re Wolf kill Feed & Fertilizer Corp., 16 UCC Rep.Serv. 1188 (N.Y.Sup.Ct.1975); In re Dalil Fashions, Inc., 12 UCC Rep.Serv. 478 (N.Y.Sup.Ct.1973). These decisions are premised on a fundamental misconception of the purpose and effect of Section 2-201. See generally Duesenberg & King, Sales and Bulk Transfers Under the Uniform Commercial Code § 308[1] at 97 — 99 (1976). The only effect of a failure to object to a written confirmation of an oral offer or agreement under Section 2-201 is to take away from the receiving merchant the defense of the Statute of Frauds. See Official Comment 3 to Section 2 — 201. See also Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal.App.3d 987,101 Cal.Rptr. 347 (1972); American Parts Co. v. American Arbitration Ass’n., 8 Mich.App. 156, 154 N.W.2d 5 (1968); John Thallon & Co. v. M&N Meat Co., 396 F.Supp. 1239 (E.D.N.Y.1975). Although Section 2-201 may make enforceable an oral agreement which was in fact reached by the parties, it does not relieve the party seeking enforcement of the alleged oral" }, { "docid": "18346788", "title": "", "text": "1926, any reported case which has excused due to delay in the mails the late presentment of a draft drawn pursuant to a letter of credit. . The draft sent to the Bank by Consolidated was seemingly a negotiable instrument. See UCC § 3-104. It was signed by the drawer (Consolidated). See UCC § 1-201(39). It contained an unconditional order to pay, see UCC §§ 3-102(1)(b), 3-105, a sum certain in money ($34,762.41). See UCC § 3-106. It was payable at a definite time (on sight). See UCC § 3-109(1)(b). Finally, it was payable to the order of the drawer (Consolidated). See UCC § 3-110(1)(a). In addition, the letter of credit itself did not restrict the negotiability of drafts drawn thereunder. The credit provided that the Bank “engage[d] with drawers and/or bonafide holders that drafts drawn and negotiated in conformity with the terms of this credit will be duly honored on presentation.” . See United Technologies Corp. v. Citibank, N.A., 469 F.Supp. 473, 478 (S.D.N.Y.1979); Shaffer v. Brooklyn Garden Apartments, 20 U.C.C.Rep.Serv. 1269, 1275 (Minn.1977); H. Harfield, note 5 supra, at 2, 20, 79, 96. . See also 50 Am.Jur.2d Letters of Credit, and Credit Cards § 6, at 403-04 (1970) (listing cases). . See H. Harfield, note 5 supra, at 48; International Chamber of Commerce, Decisions (1975-1979) of the ICC Banking Commission 11 (Publication No. 371, 1980). But see Verkuil, Bank Solvency and Guaranty Letters of Credit, 25 Stan.L.Rev. 716, 725 (1973). . See generally E. Farnsworth & J. Honnold, Cases & Materials on Commercial Law 415-43 (3d ed. 1976). . See Verkuil, note 20 supra, at 721; H. Harfield, Bank Credits & Acceptances 56-57 (5th ed. 1974). . Unlike a guaranty or surety bond, however, on which the guarantor or surety is only secondarily liable if the primary promisor defaults, a standby letter of credit represents the primary obligation of the issuing bank. It is important to note, that despite their similarities, the standby letter of credit is not a guarantee. Recovery under a guarantee is predicated upon the primary obligor’s nonperformance in fact of its guaranteed obligations." }, { "docid": "6564795", "title": "", "text": "addition, Count VI remains as one remedy for the Plaintiff, should it prevail on the merits at trial. . The parties have cited the Court to numerous sections of the California, Cal.Com.Code § 1101 et seq., and the Ohio, Ohio Rev.Code § 1301.01 et seq., enactments of the UCC. Since the enactments are identical (with minor, non-pertinent exceptions), the Court, for convenience, will simply refer to the UCC (unless otherwise indicated). . Almost all the cases discussing UCC § 2-719(2) have held that certain remedies did or did not fail of their essential purposes as a matter of law, typically on motions for summary judgment. However, the Code does not mandate that this issue is a question of law for the Court to decide, as in UCC § 1-201(10) (conspicuousness under UCC § 2-316(2) is \"for decision by the court\"), and the trier of fact can decide if the language of the code is met. At trial, AMF will have the burden of proof on this issue. J. White & R. Summers, Uniform Commercial Code § 12-10 at 465-66 (2d ed. 1980). . CAI argues that the two sentences are consistent, in that the first addresses \"one discrete problem,\" while the second \"is general and all-encompassing.” Defendant’s Reply Memorandum, Doc. # 114, pp. 9-10. But as AMF points out, Supplemental Memorandum, Doc. #118, pp. 4-5, this argument borders on Defendant’s use of extrinsic evidence to explain the contractual language. If so, Plaintiff should not be prevented from presenting like evidence. . Oddly, AMF argues that Ohio law controls this issue, when Ohio law seems much less liberal on use of extrinsic or parol evidence in contract actions. See, Weaver v. Shopsmith, Inc., 556 F.Supp. 348, 353 (S.D.Ohio 1982); Camargo Cadillac Co. v. Garfield Enterprises, Inc., 3 Ohio App.3d 435, 438, 445 N.E.2d 1141, 1144-45 (Hamilton Cty.1982). As this Court has held, supra, California law controls the contract questions in this case. . The cases do not make clear if the disclaimer’s language must actually have been brought to the buyer's attention. See, Office Supply Co., 538 F.Supp. at 784-86. While" } ]

[ { "docid": "22602649", "title": "", "text": "special rule in First Amendment cases is apparent: An over-broad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button, 371 U. S. 415, 433 (1963). Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted. But the justification for the application of over breadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 771 n. 24, there are “commonsense differences” between commercial speech and other varieties. See also id., at 775-781 (concurring opinion). Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. See id., at 771-772, n. 24. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. Ibid. Since overbreadth has been described by this Court as “strong medicine,” which “has been employed . . . sparingly and only as a last resort,” Broadrick v. Oklahoma, 413 U. S., at 613, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U. S., at 817-818. Is, then, appellants’ advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants’ advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a “legal clinic,” an allegedly undefined term; (b) the advertisement" } ]

[ { "docid": "2267034", "title": "", "text": "cases involving the freedom of speech are frequently excepted from this general rule. Los Angeles Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). The exception, however, is a narrow one: Even though the challenge be based on the First Amendment, the overbreadth doctrine is not casually employed. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the over-breadth doctrine is strong medicine and have employed it with hesitation, and then only as a last resort. Id. at 39 (citation and internal quotation marks omitted). Accordingly, “a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications.” New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). To prevail, an overbreadth plaintiff, like Newsom, must demonstrate that a regulation’s over-breadth is “not only ... real, but substantial as well, judged in relation to the [challenged regulation’s] plainly legitimate sweep,” and also that no “limiting construction” or “partial invalidation” could “remove the seeming threat or deterrence to constitutionally protected expression.” Broadrick, 413 U.S. at 613, 615, 93 S.Ct. 2908. A court, however, “will not rewrite a ... law to conform it to constitutional requirements.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Because this case involves speech at public schools, several additional considerations are worth noting. First, “[because of the duties and responsibilities of the public elementary and secondary schools, the overbreadth doctrine warrants a more hesitant application in [the public school] setting than in other contexts.” Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 259 (3d Cir.2002), cert. denied, - U.S. -, 123 S.Ct. 2077, 155 L.Ed.2d 1062 (2003). As the court in Sypniewski noted, Tinker acknowledges what common sense tells us: a much broader “plainly legitimate” area of speech can be regulated at school than outside school. Speech that disrupts education, causes disorder, or" }, { "docid": "23015213", "title": "", "text": "existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Under the doctrine, a party may bring a First Amendment case asserting the rights of third parties if “a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third par ties not before the court.” Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916 (emphasis added). A plaintiff who has established constitutional injury under a provision of a statute as applied to his set of facts may also bring a facial challenge, under the overbreadth doctrine, to vindicate the rights of others not before the court under that provision. New York v. Ferber illustrates the distinction between an as-applied challenge and a facial challenge under the over-breadth doctrine. 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The Supreme Court in Ferber considered whether to allow a bookseller, who was prosecuted for the sale of child pornography to undercover police officers, to challenge facially a New York statute that prohibited “promoting a sexual performance by a child.” Id. at 751, 102 S.Ct. at 3351. The bookseller did not contend that his sale of obscene materials to undercover officers was protected speech under the Constitution; in other words, he did not question that the New York obscenity statute, as applied to him, was constitutional. Id. at 760, 102 S.Ct. at 3356. The bookseller argued instead that the provision of the New York obscenity statute that was applied to him was overbroad because it proscribed the constitutionally-protected speech of parties not before the court. Id. The Supreme Court stated that the overbreadth doctrine “allow[s] persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity.” Id. at 769, 102 S.Ct. at 3361. The Supreme Court concluded that the overbreadth doctrine did not allow the bookseller to bring the facial challenge because the New York statute was" }, { "docid": "10023352", "title": "", "text": "would warrant any special treatment. His attack is on the face of the statute and the implementing regulations. The lifetime bar is overbroad, he claims, because there may be applicants who “briefly or long ago engaged in unlicensed broadcast operations” and who now have become “model citizens.” Petitioner’s Br. at 26. The court rejects Ruggiero’s claim on the ground that Congress rationally treated all pirates alike. Maj. op. at 246-47. Although I agree with the court, I believe another rationale leads to the same result. Litigants ordinarily do not have standing to raise the rights of others. But in arguing about hypothetical third parties, Ruggiero is in effect invoking the familiar overbreadth doctrine, a staple of First Amendment jurisprudence. The doctrine, which may be traced to Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), permits facial challenges brought on the ground that the statute or regulation reaches constitutionally protected speech of parties not before the court. If the statute is substantially overbroad— that is, if it abridges protected speech of others in a good number of cases — the statute is unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 2915-18, 37 L.Ed.2d 830 (1973). Overbreadth is sometimes viewed as an exception to traditional standing rules. See Bd. of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 482-84, 109 S.Ct. 3028, 3035-37, 106 L.Ed.2d 388 (1989); Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 488, 145 L.Ed.2d 451 (1999). The doctrine rests on the assumption that if a statute could not be challenged for overbreadth, those not before the court would be chilled and would refrain from exercising their First Amendment rights. See generally New York v. Ferber, 458 U.S. 747, 766-73, 102 S.Ct. 3348, 3359-63, 73 L.Ed.2d 1113 (1982). The “principal advantage of the overbreadth doctrine for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.” Fox, 492 U.S. at 483, 109 S.Ct. at 3036. The Supreme Court has treated" }, { "docid": "4823274", "title": "", "text": "of [a statute’s] application against political speech, which lies at the core of the First Amendment,” it is “subject to an over-breadth challenge.” Leonardson, 896 F.2d at 195 (quotation omitted). The United States Supreme Court recognizes that the overbreadth doctrine is “strong medicine” and, thus, employs it with hesitation, and then “only as a last resort.” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (citing Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). The Court has insisted the overbreadth be “substantial” in its reach before the statute involved will be invalidated on its face. Ferber, 458 U.S. at 769 n. 24, 102 S.Ct. 3348. (a) Under the overbreadth doctrine of the First Amendment, statutes are declared facially unconstitutional when their reach extends to prohibit a substantial amount of conduct that is protected by the First Amendment. Grayned, 408 U.S. at 114-15, 92 S.Ct. 2294. “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an over-breadth challenge.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). “[T]o ascertain whether the enactment reaches a substantial amount of constitutionally protected conduct,” a court considers “the actual text of the statute as well as any limiting constructions that have developed.” Boos, 485 U.S. at 329, 108 S.Ct. 1157 (citing Kolender, 461 U.S. at 355, 103 S.Ct. 1855, and Grayned, 408 U.S. at 110, 92 S.Ct. 2294); Forsyth, 505 U.S. at 131, 112 S.Ct. 2395. Plaintiffs assert that the danger that the Michigan funeral protest statute will be applied against political speech is real. Plaintiffs emphasize that the Lowdens were arrested simply because the political signs on their van were suspected of “adversely affecting” a soldier’s funeral. Additionally, the statute was enacted in response to “[w]idely publicized protests at funerals of soldiers killed in Iraq and Afghanistan” in an effort “to limit protests near funerals.” Defs. Mot. Ex. 3 (Bill Analysis). In other words, the very purpose of" }, { "docid": "407372", "title": "", "text": "undue burden on such protected activity, free expression can be chilled even in the absence of the statute’s specific application to protected speech. For this reason, the Court has recognized the so-called over-breadth doctrine in the limited context of First Amendment facial challenges. Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). Since the overbreadth doctrine in effect requires courts to evaluate the potential reach of a statute, conceivable sets of circumstances, and possible direct and indirect burdens on speech, “[t]he Supreme Court has noted that the overbreadth doctrine is ‘strong medicine’ that should be employed only ‘with hesitation, and then “only as a last resort.” ’ ” Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389, 1391 (8th Cir.1986) (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (in turn quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916-17, 37 L.Ed.2d 830 (1973)). When the regulation is not directed at the origin of expression, or at the ultimate right of a person (in this case, an adult) to present or procure protected expression, it does not impinge upon “mere speech”; rather, it regulates the method of presenting, or the form of, expression. Regulations on display affect “conduct plus speech.” Upper Midwest Booksellers, 780 F.2d at 1391-92; M.S. News Co. v. Casado, 721 F.2d 1281, 1289 (10th Cir.1983); American Booksellers Ass’n v. Rendell, 332 Pa. Super. 537, 581, 481 A.2d 919, 941 (1984). “[W]hen conduct plus speech is involved, the overbreadth must be ‘real’ and ‘substantial’ in relation to [the regulation’s] ‘plainly legitimate sweep’ before the [regulation] should be invalidated on its face.” Upper Midwest Booksellers, 780 F.2d at 1391-92 (quoting Ferber, 458 U.S. at 770, 102 S.Ct. at 3361-62). As the Supreme Court recently stated when considering a facial challenge to a Virginia regulation on the display of materials “harmful to juveniles,” courts have an obligation to construe the challenged statute narrowly: It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it" }, { "docid": "10023364", "title": "", "text": "Communications Act,” they have “demonstrate[d] a willful disregard of the most basic rule of federal broadcasting regulation” and are properly covered by the statute and implementing rule. Maj. Op. at 247. The differing applications of the over-breadth doctrine by the en banc majority and the panel majority suggest the importance of considering whether the doctrine properly applies at all to Ruggiero’s appeal. See L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38-41, 120 S.Ct. 483, 488-90, 145 L.Ed.2d 451 (1999). The en banc majority does not address this threshold question. Although the parties did not brief the issue of whether the overbreadth doctrine applies, the question was raised by the en banc court during oral argument and the parties’ attention was drawn to the Supreme Court’s decision in Los Angeles Police Department. Each party was afforded an opportunity to respond to the question and neither party sought permission from the court to file a supplemental memorandum on the question. As a jurisdictional issue that the court can raise sua sponte, insofar as the question implicates whether Ruggie-ro is a proper party to challenge the over-broad nature of the statute and rule, see New York v. Ferber, 458 U.S. 747, 767-68 & n. 20, 102 S.Ct. 3348, 3359-61 & n. 20 73 L.Ed.2d 1113 (1982), it behooves the court to address the threshold question of whether the doctrine applies here, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 1012-13, 140 L.Ed.2d 210 (1998). For the reasons generally set forth in Judge Randolph’s concurring opinion, I would deny the petition for review. In light of Los Angeles Police Department, the overbreadth doctrine does not apply. Although the dissent treats Ruggiero’s challenge to the ban as based on underin-clusiveness and overinclusiveness, and continues to apply the News America analysis, dissenting op. at 256-261, as Judge Randolph makes clear, one of Ruggiero’s First Amendment challenges is an over-breadth challenge. Concurring op. Randolph, J. at 251, 252. There is no evidence that the speech of any pirate has been chilled as a result of" }, { "docid": "407371", "title": "", "text": "the Act, and who may not. DISCUSSION II. REVIEWING A FIRST AMENDMENT REGULATION FOR FACIAL VALIDITY Before considering the specific test or standards by which we must measure the constitutionality of the display ban, it is important to articulate the general interpretive principles applicable in a facial challenge to a statute affecting speech. Outside of the First Amendment context, the Supreme Court has noted the difficulties inherent in a facial challenge: that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid. The fact that [the challenged statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid....” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). The Court has recognized that when overly broad statutory language seems to sweep protected First Amendment expression directly into the scope of a regulation affecting speech, or indirectly places an undue burden on such protected activity, free expression can be chilled even in the absence of the statute’s specific application to protected speech. For this reason, the Court has recognized the so-called over-breadth doctrine in the limited context of First Amendment facial challenges. Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). Since the overbreadth doctrine in effect requires courts to evaluate the potential reach of a statute, conceivable sets of circumstances, and possible direct and indirect burdens on speech, “[t]he Supreme Court has noted that the overbreadth doctrine is ‘strong medicine’ that should be employed only ‘with hesitation, and then “only as a last resort.” ’ ” Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389, 1391 (8th Cir.1986) (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (in turn quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916-17, 37 L.Ed.2d 830 (1973)). When the regulation is not directed at the origin of expression, or at the ultimate" }, { "docid": "3550791", "title": "", "text": "because it is not narrowly tailored to serve that governmental interest. Application of the doctrine of facial invalidity or “overbreadth” is “manifestly, strong medicine.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). The Supreme Court has stated that, particularly where conduct and not merely speech is involved, “the over-breadth of a statute must not only be real, but substantial as well.” Id. at 615, 93 S.Ct. at 2917; see also City Council v. Taxpayers for Vincent, 466 U.S. 789, 799-801, 104 S.Ct. 2118, 2125-26, 80 L.Ed.2d 772 (1984) (same); New York v. Ferber, 458 U.S. 747, 770-71, 102 S.Ct. 3348, 3361-62, 73 L.Ed.2d 1113 (1982) (same). “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an over-breadth challenge.” Vincent, 466 U.S. at 800, 104 S.Ct. at 2126; accord Finzer v. Berry, 798 F.2d 1450, 1472-74 (D.C.Cir.1986), cert. granted, — U.S.-, 107 S.Ct. 1282, 94 L.Ed.2d 141 (1987); American Booksellers Ass’n v. Virginia, 802 F.2d 691, 695 (4th Cir.1986); Clean-Up ’84 v. Heinrich, 759 F.2d 1511, 1513-14 (11th Cir.1985). Moreover, the Court instructs us that ordinances and statutes “should not be deemed facially invalid unless [they are] not readily subject to a narrowing construction by the state courts.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975); see also Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13,104 S.Ct. 2839, 2851 n. 13, 81 L.Ed.2d 786 (1984) (voiding statute limiting fundraising expenditures by charities for facial invalidity where state courts had been unable to construe statute so as to avoid constitutional infirmity); Ferber, 458 U.S. at 766-74, 102 S.Ct. at 3359-63 (child pornography statute not substantially overbroad as construed by state courts). The court today, defying these principles, concludes that the ordinance is overbroad based upon the single hypothetical example of picketing adjacent to “a dwelling located in a mixed commercial and residential neighborhood.” Ante at 957. The court merely conceives of a single impermissible application of the" }, { "docid": "10023353", "title": "", "text": "others in a good number of cases — the statute is unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 2915-18, 37 L.Ed.2d 830 (1973). Overbreadth is sometimes viewed as an exception to traditional standing rules. See Bd. of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 482-84, 109 S.Ct. 3028, 3035-37, 106 L.Ed.2d 388 (1989); Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 488, 145 L.Ed.2d 451 (1999). The doctrine rests on the assumption that if a statute could not be challenged for overbreadth, those not before the court would be chilled and would refrain from exercising their First Amendment rights. See generally New York v. Ferber, 458 U.S. 747, 766-73, 102 S.Ct. 3348, 3359-63, 73 L.Ed.2d 1113 (1982). The “principal advantage of the overbreadth doctrine for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.” Fox, 492 U.S. at 483, 109 S.Ct. at 3036. The Supreme Court has treated the doctrine as “‘strong medicine’ ” to be employed “ ‘only as a last resort.’ ” Ferber, 458 U.S. at 769, 102 S.Ct. at 3361 (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916-17). The assumption underlying the over-breadth doctrine is inapplicable here. There is no possibility that third parties could be chilled in the exercise of their First Amendment rights. See Bates v. State Bar of Ariz., 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977). We are not dealing with a criminal provision. All that is involved is filing an application with the FCC. Many pirates have done so. Creation of a Low Power Radio Serv., 16 F.C.C.R. 8026, 8030, 8060, 2001 WL 310997 (2001). If they file applications in the future no harm will befall them. Their applications will simply be denied. There is in short no chilling effect and Ruggiero therefore cannot invoke the overbreadth doctrine. See Los Angeles Police Dep’t, 528 U.S. at 38-41, 120 S.Ct. at 488-90; United States v. Hsia, 176 F.3d 517, 523" }, { "docid": "4823273", "title": "", "text": "not suggested that facts exist that would be material to the analysis of qualified immunity. Thus, Deputies Kahsin and Woodcock are not entitled to qualified immunity on Plaintiffs’ as-applied Fourteenth Amendment claim. 3 The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., amend. I. Underlying the overbreadth doctrine is the concern that an overbroad statute will “chill” the exercise of free speech and expression by causing “ ‘those who desire to engage in legally protected expression ... [to] refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.’ ” United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 361 (6th Cir.1998) (citing Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987)). Where “there is a realistic danger of [a statute’s] application against political speech, which lies at the core of the First Amendment,” it is “subject to an over-breadth challenge.” Leonardson, 896 F.2d at 195 (quotation omitted). The United States Supreme Court recognizes that the overbreadth doctrine is “strong medicine” and, thus, employs it with hesitation, and then “only as a last resort.” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (citing Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). The Court has insisted the overbreadth be “substantial” in its reach before the statute involved will be invalidated on its face. Ferber, 458 U.S. at 769 n. 24, 102 S.Ct. 3348. (a) Under the overbreadth doctrine of the First Amendment, statutes are declared facially unconstitutional when their reach extends to prohibit a substantial amount of conduct that is protected by the First Amendment. Grayned, 408 U.S. at 114-15, 92 S.Ct. 2294. “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to" }, { "docid": "5659009", "title": "", "text": "Constitution. The harassment policy can be found unconstitutionally overbroad if “there is a ‘likelihood that the statute’s very existence will inhibit free expression’ ” to a substantial extent. Saxe, 240 F.3d at 214 (quoting Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 799, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). In most cases, courts will not assess the constitutionality of a provision apart from its particular applications. But cases involving freedom of speech are frequently excepted from this general rule. Los Angeles Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). The exception, however, is a narrow one: Even though the challenge be based on the First Amendment, the over-breadth doctrine is not casually employed. “Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is ‘strong medicine’ and have employed it with hesitation, and then ‘only as a last resort.’ ” Id. at 39, 120 S.Ct. 483 (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). Accordingly, most cases alleging unconstitutional enforcement of a public school’s disciplinary policies, like other laws, “are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge.” City of Chicago v. Morales, 527 U.S. 41, 111, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Thomas, J., dissenting). For these reasons, courts will not strike down a regulation as overbroad unless the overbreadth is “substantial in relation to the [regulation’s] plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Furthermore, in response to an overbreadth challenge, a policy can be struck down only if no reasonable limiting construction is available that would render the policy constitutional. Saxe, 240 F.3d at 215. “[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Id. (quoting Stretton v. Disciplinary Bd. of the Supreme" }, { "docid": "6302638", "title": "", "text": "exercising them rights for fear of criminal sanctions by a statute susceptible of application to protected expression.” New York v. Ferber, 458 U.S. 747, 768, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113, 1130 (1982) (internal citation and quotation omitted). “It is for this reason that [the Supreme Court has] allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity.” Id. at 458 U.S. at 769, 102 S.Ct. at 3361, 73 L.Ed.2d at 1130 (citing Dombrowski v. Pfister, 380 U.S. 479, 491-92, 85 S.Ct. 1116, 1123-24, 14 L.Ed.2d 22, 28 (1965) among other authorities); Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 840 (1973) (“Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”). The overbreadth doctrine, however, “attenuates as the otherwise unprotected behavior that [a statute] forbids ... moves from ‘pure speech’ toward conduct.” Virginia v. Hicks, 539 U.S. 113, 124, 123 S.Ct. 2191, 2199, 156 L.Ed.2d 148, 160 (2003) (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917, 37 L.Ed.2d at 841). Thus, under the First Amendment a “less rigorous standard of review is applied to monetary contributions than to pure speech.” United States v. Afshari, 412 F.3d 1071, 1079 (9th Cir.2005). “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).” Hicks, 539 U.S. at 124, 123 S.Ct. at 2199, 156 L.Ed.2d at 160 (parentheses in original). Indeed, “like most exceptions to established principles,” the scope of the First Amendment overbreadth doctrine “must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted.” Ferber, 458 U.S. at 769, 102 S.Ct. at 3361, 73 L.Ed.2d at" }, { "docid": "2267033", "title": "", "text": "observer could conclude that Jouett somehow endorsed the t-shirt worn by Newsom, or any other student’s clothing that contained a message related to weapons. As a result, Tinker is the most relevant of the three Supreme Court cases concerning school speech and sets forth the legal framework that we will use in our overbreadth analysis. The overbreadth doctrine constitutes “a departure from traditional rules of standing.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Pursuant to it, an individual may “challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (citation and internal quotation marks omitted). In most cases, courts will not assess the constitutionality of a provision apart from its particular application. But cases involving the freedom of speech are frequently excepted from this general rule. Los Angeles Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). The exception, however, is a narrow one: Even though the challenge be based on the First Amendment, the overbreadth doctrine is not casually employed. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the over-breadth doctrine is strong medicine and have employed it with hesitation, and then only as a last resort. Id. at 39 (citation and internal quotation marks omitted). Accordingly, “a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications.” New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). To prevail, an overbreadth plaintiff, like Newsom, must demonstrate that a regulation’s over-breadth is “not only ... real, but substantial as well, judged in relation" }, { "docid": "10023365", "title": "", "text": "the question implicates whether Ruggie-ro is a proper party to challenge the over-broad nature of the statute and rule, see New York v. Ferber, 458 U.S. 747, 767-68 & n. 20, 102 S.Ct. 3348, 3359-61 & n. 20 73 L.Ed.2d 1113 (1982), it behooves the court to address the threshold question of whether the doctrine applies here, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 1012-13, 140 L.Ed.2d 210 (1998). For the reasons generally set forth in Judge Randolph’s concurring opinion, I would deny the petition for review. In light of Los Angeles Police Department, the overbreadth doctrine does not apply. Although the dissent treats Ruggiero’s challenge to the ban as based on underin-clusiveness and overinclusiveness, and continues to apply the News America analysis, dissenting op. at 256-261, as Judge Randolph makes clear, one of Ruggiero’s First Amendment challenges is an over-breadth challenge. Concurring op. Randolph, J. at 251, 252. There is no evidence that the speech of any pirate has been chilled as a result of the ban, and when counsel for Ruggiero was asked at oral argument what chilling effect the ban might have on other pirates, he was only able to identify the fact that “many of these individuals won’t even bother to go through the process of applying for a broadcast license,” because “[t]hey don’t have a lot of money to hire lawyers.” The financial inability of private parties to file suit to challenge arguably unconstitutional statutes is insufficient to show a chilling effect. Moreover, Ruggiero’s own history with the Commission leaves no room for doubt that such a ban can be constitutionally applied to so flagrant a violator of the Communications Act. See Free Speech v. Reno, No. 98 CIV. 2680(MBM), 1999 WL 147743, at *11 (S.D.N.Y. Mar.18, 1999), aff'd sub nom. Free Speech ex rel. Ruggiero v. Reno, 200 F.3d 63 (2d Cir.1999); In re Creation of Low Power Radio Serv., 15 F.C.C.R. 19,208, 19,245 & n. 140, 2000 WL 1434686 (2000), amended by 16 F.C.C.R. 8026, 2001 WL 310997 (2001). Indeed, the dissent does not" }, { "docid": "10023394", "title": "", "text": "senseless prohibition of speech” by applicants who once broadcast illegally “but for one reason or another pose no risk of the evils that those requirements are designed to avoid.” The concurring opinion, relying on Los Angeles Police Department v. United Reporting Pub. Corp., 528 U.S. 32, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999), argues that Ruggiero “cannot invoke the [First Amendment] overbreadth doctrine.” Randolph Op. at 249. I disagree for two reasons. First, unlike United Reporting, the respondent in Los Angeles Police Department, Ruggiero is not “ ‘a person to whom [the RBPA] may constitutionally be applied’ ” who is “ ‘challenging] that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.’ ” L.A. Police Dep’t, 528 U.S. at 38, 120 S.Ct. at 488 (quoting New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3359-60, 73 L.Ed.2d 1113 (1982)). Ruggiero has never conceded that the RBPA may be applied constitutionally to him, much less to anyone else. Quite to the contrary, he argues that the RBPA cannot constitutionally be applied to anyone because the statute automatically bars unlicensed microbroadcast-ers (unlike all other Communications Act violators) from future speech without an opportunity to demonstrate to the Commission that notwithstanding their offenses, they can function as truthful and reliable licensees. It is true that Ruggiero concedes that “some former pirates may lack the requisite character traits to hold [low power] licenses,” Petitioner’s Reply Br. at 11, and that he never says that his behavior is “not egregious,” Randolph Op. at 250. But that’s beside the point. Ruggiero argues not that he has a right to serve on the low power station’s board of directors, but that this poorly tailored statute automatically bars him from even trying to demonstrate to the Commission — which under its general character policy automatically disqualifies not even the most “atrocious” violators — that he can nevertheless be trusted to function in the public interest. Ruggie-ro thus has no need to take advantage of the overbreadth doctrine’s “ ‘departure from traditional rules of standing,’ ” designed" }, { "docid": "15437768", "title": "", "text": "allows a party like Excalibur to challenge an ordinance on the ground that the ordinance might be applied unconstitutionally to third parties whose actual circumstances are not before the court. Bates v. State Bar of Ariz., 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977). The doctrine developed out of a recognition that an overly broad statute may chill protected speech and the conclusion that “the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.” Id. Because the overbreadth doctrine has far-reaching ramifications, however, it is “ ‘strong medicine’ that should be employed only “with hesitation,’ and then ‘only as a last resort.’ ” Upper Midwest Booksellers Ass’n v. City of Minneapolis, 780 F.2d 1389, 1391 (8th Cir.1985) (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982)). To be facially invalidated under this doctrine, the overbreadth of an ordinance affecting both conduct and pure speech must be both “real” and “substantial” in relation to its “plainly legitimate sweep.” Ferber, 458 U.S. at 769-70, 102 S.Ct. at 3362; Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). There is real and substantial overbreadth when there is “a realistic danger that the ordinance itself will significantly compromise recognized First Amendment protections of parties not before the [c]ourt.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). We will not strike down a ordinance for overbreadth if its legitimate reach “dwarfs its arguably impermissible applications.” Ferber, 458 U.S. at 773, 102 S.Ct. at 3363. Excalibur claims section 540.410(g)(3) is unconstitutionally overbroad. Excalibur notes that some businesses classified as adults-only bookstores may have merchandise for sale that is not pornographic or sexually oriented. See Minneapolis, Minn., Code of Ordinances § 540.410(b) (defining an “adults-only bookstore” as “[a]n establishment having as a substantial or significant portion of its stock in [materials] which are distinguished or characterized by their principal emphasis on [sexually oriented matters]," }, { "docid": "23427138", "title": "", "text": "York v. Ferber, 458 U.S. 747, 767-74, 102 S.Ct. 3348, 3359-63, 73 L.Ed.2d 1113 (1982). So limited, it is “strong medicine,” to be applied “with hesitation and then only as a last resort,” and only if the statute cannot be given a narrowing construction to remove the overbreadth. New York v. Ferber, supra at 769, 102 S.Ct. at 3361. Thus, in McGehee v. Casey, 718 F.2d at 1146, Judge Wald held that “over-breadth analysis should not be deployed when a limiting construction could save the rule from its constitutional defects,” citing Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), and Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Moreover, a distinction must be made in this connection between statutes which regulate “conduct in the shadow of the First Amendment” and those which regulate pure speech. The rule makes a distinction “where conduct and not merely speech is involved.” In the conduct context, “over-breadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment,” and in such a case “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. at 615, 93 S.Ct. at 2918. To be “substantial” in that context, the statute must reach “a substantial number of impermissible applications....” New York v. Ferber, 458 U.S. at 771, 102 S.Ct. at 3362. An authority on the scope of the doctrine has formulated a statement of what he characterizes as the three “fundamental circumstances” under which the doctrine may be applied after discussing the foregoing rules. These circumstances are: “(1) when ‘the governmental interest sought to be implemented is too insubstantial, or at least insufficient in relation to the inhibitory effect on first amendment freedoms’; (2) when the means employed bear little relation to the asserted governmental interest; and (3) when the means chosen by the legislature do in fact relate to a substantial governmental interest, but that interest" }, { "docid": "9734795", "title": "", "text": "No censorship of the content is involved. Petitioners argue that the FCC regulations and, in particular, the written application required for obtaining an access code, impermissibly chill the First Amendment rights of adults wishing to receive sexual messages over the telephone. They suggest that many adults will not exercise their First Amendment rights because they fear that the Government can discover their identities by using its subpoena power to obtain the providers’ records. This argument essentially claims that the regulation even if valid as applied to Carlin is overbroad because it affects others not before the court. The traditional rule is that a party to which a statute may be applied constitutionally may not facially challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court. New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3360, 73 L.Ed.2d 1113 (1982). The First Amendment overbreadth doctrine is an exception to this principle. See Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). However, the overbreadth doctrine is “strong medicine,” employed “only as a last resort.” Id. at 613, 93 S.Ct. at 296. Thus, the overbreadth must be “substantial” before the statute involved will be invalidated on its face. Ferber, 458 U.S. at 769, 102 S.Ct. at 3361. The possibility that at some point the Government might obtain the names of the recipients of obscene telephone messages by subpoena is not sufficiently substantial. Despite what we said about “potential chilling effect” in Carlin II, 787 F.2d at 856 n. 7, neither Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), nor NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), is implicated. Talley involved revealing the names of all persons who wrote or distributed handbills to the public at large. 362 U.S. at 60-61, 80 S.Ct. at 537. NAACP involved disclosing names of members of an organization to a state government in a state where such exposure had led to “economic reprisal, loss of employment, threat" }, { "docid": "10023354", "title": "", "text": "the doctrine as “‘strong medicine’ ” to be employed “ ‘only as a last resort.’ ” Ferber, 458 U.S. at 769, 102 S.Ct. at 3361 (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916-17). The assumption underlying the over-breadth doctrine is inapplicable here. There is no possibility that third parties could be chilled in the exercise of their First Amendment rights. See Bates v. State Bar of Ariz., 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977). We are not dealing with a criminal provision. All that is involved is filing an application with the FCC. Many pirates have done so. Creation of a Low Power Radio Serv., 16 F.C.C.R. 8026, 8030, 8060, 2001 WL 310997 (2001). If they file applications in the future no harm will befall them. Their applications will simply be denied. There is in short no chilling effect and Ruggiero therefore cannot invoke the overbreadth doctrine. See Los Angeles Police Dep’t, 528 U.S. at 38-41, 120 S.Ct. at 488-90; United States v. Hsia, 176 F.3d 517, 523 (D.C.Cir.1999). Without the benefit of the doctrine, he can succeed in his facial challenge only if he establishes “that no set of circumstances exists under which the Act [and the implementing regulations] would be valid,” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987); see Amfac Resorts, L.L.C. v. U.S. Dep’t of Interior, 282 F.3d 818, 826 (D.C.Cir.), cert granted sub nom. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, — U.S. -, 123 S.Ct. 549, 154 L.Ed.2d 424 (2002); James Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.Cir.1996); Chem. Waste Mgmt., Inc. v. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995); Steffan v. Perry, 41 F.3d 677, 693 (D.C.Cir.1994) (en banc); but see INS v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183, 188, 112 S.Ct. 551, 555, 116 L.Ed.2d 546 (1991). This is a burden Ruggiero admits he cannot meet. He has conceded that “some former pirates may lack the requisite character traits to hold [low-power] licenses.” Petitioner’s Reply Br. at 11. Ruggiero himself committed" }, { "docid": "10023393", "title": "", "text": "another pose no risk of the evils that those requirements are designed to avoid. Id. at 325, 122 S.Ct. at 781. The issue in Thomas is quite similar to the one we face here, even though the broadcast spectrum, unlike a public park, is not a public forum. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676, 118 S.Ct. 1633, 1640-41, 140 L.Ed.2d 875 (1998) (holding that public forum doctrine did not apply to public television broadcast). Both cases involve forums unable to accommodate all speakers, and in both cases the government seeks to avoid chaos and to ensure the forums’ availability for use by as many speakers as possible. In Thomas, the Court discussed the constitutionality of a “rigid, no-waiver” rule that would automatically deny permits to persons who had violated park district rules; here, Congress adopted a “rigid, nowaiver” rule that automatically denies low power licenses to all former unlicensed microbroadcasters. To use Thomas’s words, then, the “prophylaxis achieved by” the RBPA’s character standard is “far outweighed ... by the accompanying senseless prohibition of speech” by applicants who once broadcast illegally “but for one reason or another pose no risk of the evils that those requirements are designed to avoid.” The concurring opinion, relying on Los Angeles Police Department v. United Reporting Pub. Corp., 528 U.S. 32, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999), argues that Ruggiero “cannot invoke the [First Amendment] overbreadth doctrine.” Randolph Op. at 249. I disagree for two reasons. First, unlike United Reporting, the respondent in Los Angeles Police Department, Ruggiero is not “ ‘a person to whom [the RBPA] may constitutionally be applied’ ” who is “ ‘challenging] that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.’ ” L.A. Police Dep’t, 528 U.S. at 38, 120 S.Ct. at 488 (quoting New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3359-60, 73 L.Ed.2d 1113 (1982)). Ruggiero has never conceded that the RBPA may be applied constitutionally to him, much less to anyone else. Quite to the contrary, he argues" } ]

[ { "docid": "22261201", "title": "", "text": "have therefore held that California’s one-year statute of limitations for personal injury actions applies to § 1983 suits in federal court. See DeGrassi v. City of Glendora, 207 F.3d 636, 644 (9th Cir.2000). California’s legislature, however, has recently revised the relevant statute of limitations, extending it to two years. See 2002 Cal. Legis. Serv. Ch. 448 (S.B.688) (West); Cal.Civ.Proc.Code § 335.1 (West Supp.2004). Maldonado argues that we should apply the two-year period. The extension of the statute of limitations, however, did not become effective until January 1, 2003, several months after Maldonado filed his complaint. Under California law, an extension of a statute of limitations will not apply to claims already barred under the prior statute of limitations unless the Legislature explicitly provides otherwise. See Douglas Aircraft Co. v. Cranston, 58 Cal.2d 462, 24 Cal.Rptr. 851, 374 P.2d 819, 822 (1962); see also W. Sec. Bank, N.A. v. Superior Court, 15 Cal.4th 232, 62 Cal.Rptr.2d 243, 933 P.2d 507, 513 (1997) (“A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so.”). In enacting the new two-year statute of limitations, the California Legislature made it applicable retroactively only to the victims of the terrorist attacks of September 11, 2001. See 2002 Cal. Legis. Serv. Ch. 448, § 4 (S.B.688) (West). The recent extension is therefore inapplicable to Maldonado’s- claims, and we consider the question under the one-year period. Accord Krupnick v. Duke Energy Morro Bay, LLC, 115 Cal.App.4th 1026, 9 Cal.Rptr.3d 767 (2004) (holding that 2-year statute of limitations did not apply retroactively to claims already barred). Because Maldonádo filed the complaint in this case on July 2, 2002, any claims that had accrued before July 2, 2001 are barred by the statute of limitations. Federal law determines when a civil rights claim accrues. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001). “Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Id. (quoting TwoRivers v. Lewis, 174 F.3d 987, 992 (9th Cir.1999))." } ]

[ { "docid": "23295323", "title": "", "text": "cause of action would never accrue for purposes of the statute until cause, when at issue, had been resolved at trial. See Dawson v. Eli Lilly and Co., 543 F.Supp. 1330, 1334 (D.D.C.1982). Such a definition would entirely defeat the purposes of a statute of limitations in this class of cases, and we know of no court which has gone so far. A number of courts have, however, adopted discovery rules under which a cause of action does not accrue until the plaintiff discovers or in the exercise of due diligence should discover, in addition to his injury and its cause, that the injury has resulted from some negligence or wrongdoing on the part of the defendant, some actionable wrong. See Dawson v. Eli Lilly and Co., supra (applying D.C. law); Goodman v. Mead Johnson & Co., 534 F.2d 566, 575 (3d Cir.1976) (applying New Jersey law); Anderson v. Shook, 333 N.W.2d 708 (N.D.1983); Hoffman v. Rockey, 55 Or.App. 658, 639 P.2d 1284, 1286 (1982); Jacoby v. Kaiser Foundation Hospital, 1 Haw.App. 519, 622 P.2d 613 (1981); Foil v. Ballinger, 601 P.2d 144, 147 (Utah 1979); Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138 (1977); Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (Colo. 1970). Several federal courts of appeals had adopted a similar discovery rule in medical malpractice cases under the Federal Tort Claims Act, delaying the running of the statute until the patient “had a reasonable opportunity to discover each of the elements of a cause of action — duty, breach, causation, and damages,” until that approach was overruled in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Stoleson v. United States, 629 F.2d 1265, 1268 n. 3 (7th Cir. 1980). Under this legal standard, notice of breach of duty on the part of appellee would have to be reasonably attributable to appellant by September 23, 1978, three years before suit, for the statute of limitations to bar her claim. As of that date appellant could be said to have learned two things: first, the causal relationship," }, { "docid": "2585453", "title": "", "text": "personal representative of the decedent, for the benefit of the decedent's surviving spouse[or] surviving children ... may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of: (a) Three years after the death of the decedent; or (b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110(4), 12.115, 12.135, 12.137 and 30.905. . The Oregon medical malpractice statute of ultimate repose, Or.Rev.Stat. § 12.110(4), provides: An action to recover damages for injuries to the person arising from any medical ... treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160 [the disability tolling statute], every [malpractice action] shall be commenced within five years from the date of treatment, omission or operation upon which the action is based This five-year repose period is absolute in the absence of fraud, deceit, or a misleading representation, for which a statutory exception applies. Urbick v. Suburban Med. Clinic, Inc., 141 Or.App. 452, 918 P.2d 453, 455-56 (1996). It does not matter when the claim accrued, or even if it has accrued. Id. at 457. . A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir.2003). All allegations" }, { "docid": "8018931", "title": "", "text": "court denied GSM’s motions for JNOY or a new trial. We reverse the district court since we find that MHL’s claim was barred, in whole or in part, by a statute of limitations defense, and was preempted in part by the federal Copyright Act of 1976. Statute of Limitations The statute of limitations issue has two components. Which statute of limitations applies? When did the statute commence running? Since this is an action for common law copyright infringement, reference must be made to the applicable state statute of limitations. Oregon supplies that law since the copyright owner’s domicile controls for choice of law determinations. See Granite Equip. Leasing Corp. v. Hutton, 84 Wash.2d 320, 525 P.2d 223 (1974); Buresh v. First Nat’l Bank, 10 Or.App. 463, 500 P.2d 1063 (1972). Both contract and tort statutes of limitations were presented to the district court. The court did not make a ruling as to which statute was applicable. Appellees-MHL maintain there is no time bar problem, since the applicable statute is O.R.S. § 12.080, a six-year contract statute of limitations. Application of that statute requires that suit have been commenced by 1982, at the earliest; suit was filed herein in 1979. MHL argues that the contract statute governs this action since their claim was quasi-contractual, in that they sought damages under an unjust enrichment theory- We disagree with MHL, and find that this action is governed by O.R.S. § 12.110, a two-year tort statute of limitations. Oregon recognizes that it is the gravamen or predominant characteristic of the action, not plaintiff’s election of remedies, which governs whether an action is one in contract or tort for purposes of determining the applicable statute of limitations. Lindemeier v. Walker, 272 Or. 682, 538 P.2d 1266 (1975). The gravamen of this action is one for misappropriation of intellectual property rights, and is a tort. See 3 Nimmer on Copyright, § 12.05 n. 1 (1982). We next must determine when the tort statute of limitations commenced to run. O.R.S. § 12.010 states that actions shall only be commenced “after the cause of action shall have accrued," }, { "docid": "5541202", "title": "", "text": "the prosecution. Hartman [v. Moore ], 126 S.Ct. at 1707. Becker v. Kroll, 494 F.3d at 925. “While state law governs limitations and tolling issues, federal law determines the accrual of section 1983 claims.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995). The statute of limitations for § 1983 claims is drawn from the personal-injury statute of the state in which the federal district court sits. See Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Federal law, however, determines the date on which the claim accrues and the limitations period starts to run. See Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007). In New Mexico, federal law borrows the three-year statute of limitations for personal injury set forth in NMSA 1978, § 37-1-8. See Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir.2008). “A civil rights action accrues when facts that would support a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d at 675. “In general, under the federal discovery rule, claims accrue and [t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004). The focus is “on whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm. In this context, a plaintiff must use reasonable diligence in seeking to discover facts giving rise to a claim for relief.” Alexander v. Oklahoma, 382 F.3d at 1216 (internal citations omitted). The Tenth Circuit has not addressed specifically when a First-Amendment retaliation claim accrues. Other courts have found that Firsb-Amendment retaliation claims accrue when a plaintiff knows or has reason to know of the retaliation. See Elliott Reihner Siedzikowski & Egan, P.C. v. Pa. Employees Benefit Trust Fund, 29 Fed.Appx. 838, 840 (3d Cir.2002) (holding that a First-Amendment retaliation claim accrues once a plaintiff possesses “the critical facts that he has been hurt and" }, { "docid": "17583912", "title": "", "text": "U.S.C. § 1983 which creates a civil action for the deprivation of federally protected rights. Because 42 U.S.C. § 1983, contains no specific statute of limitations, federal courts borrow state statutes of limitations for personal injury actions in Section 1983 suits. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.2007); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir.2004). “Federal law determines when a civil rights claim accrues.” Maldonado, 370 F.3d at 954; Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001). Accrual occurs when the plaintiff has “a complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). The Ninth Circuit has explained that “[u]nder federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Maldonado, 370 F.3d at 955; Knox, 260 F.3d at 1013. Defendant is correct that in a 42 U.S.C.1983 action, when the court borrows the statute of limitations from California State law, California’s procedure for relation back in the suing of fictitious defendants controls. Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir.1989); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1463 (9th Cir.1988). The court’s conclusion in Cabrales expressly relied on Lindley v. General Elec. Co., 780 F.2d 797 (9th Cir.1986). Cabrales at 1463. In Lindley, the Ninth Circuit adopted a district court’s determination that taken together California Civil Procedure Code sections 340, 474, and 581a can functionally create a four year statute of limitations if the plaintiff filed suit within one year of accrual of the cause of action and the identity of defendants are unknown to plaintiff. Lindley at 800 (paraphrasing and adopting Rumberg v. Weber Aircraft Corp., 424 F.Supp. 294 (C.D.Cal.1976)); Cal.Civ. Proc.Code §§ 340, 474, 581a, 583.210. Some commentators suggest the line of cases following Cabrales and Merritt can be explained as a determination that California’s relation-back rule is inextricably intertwined with its statute of limitations." }, { "docid": "2585455", "title": "", "text": "of material fact are taken as true and viewed in the light most favorable to the non-movant. Nat’l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd., 228 F.3d 1043, 1049 (9th Cir.2000). However, ”[c]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Id. We review de novo a district court’s choice of law decisions, Abogados v. AT & T, Inc., 223 F.3d 932, 934 (9th Cir.2000), as well as its interpretations of state law, Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1086 n. 3 (9th Cir.2003). . Oregon requires wrongful death actions to be brought within three years from the date the injury causing death is discovered or reasonably should have been discovered. Or. Rev.Stat. § 30.020(1). On the other hand, Washington allows wrongful death actions based on medical malpractice claims to be brought within three years of the date of death. Wills v. Kirkpatrick, 56 Wash.App. 757, 785 P.2d 834, 837 (1990) (holding that general statute of limitations in Wash. Rev. Code § 4.16.080(2) applies in wrongful death cases based on medical malpractice instead of the medical malpractice statute of limitations, Wash. Rev.Code § 4.16.350, because legislature did not intend to bar claims even before death triggered accrual of right to bring action); see also Wash. Rev.Code § 4.16.080(2). . Although the distinction between statutes of limitations and statutes of repose is often blurred, statutes of limitations differ from statutes of repose because the former \"bars plaintiff[s] from bringing an already accrued claim after a specified period of time,” whereas the latter \"terminates a right of action after a specific time, even if the injury has not yet occurred.” Rice, 875 P.2d at 1216. . The general weight of authority accepts the characterization of statutes of repose as substantive provisions in a choice of law context. See, e.g., Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir.1987); Wayne v. Tenn. Valley Auth., 730 F.2d 392, 401-02 (5th Cir.1984); Pottratz v. Davis, 588 F.Supp. 949, 952-53 (D.Md.1984); Nieman v. Press & Equip. Sales" }, { "docid": "4074919", "title": "", "text": "statute of limitations after the pre-existing period of limitations has expired impermissibly revives a moribund cause of action.” Id. at 950, 117 S.Ct. 1871 (citing Chenault, 37 F.3d at 537). Although, the present action is distinguishable because the retroactive application of the limitations period set forth in § 3730(h)(3) would not require Boeing to defend a previously time-barred claim, absent controlling authority, the court declines to apply § 3730(h)(3) here. Instead, after a careful review of the parties’ respective arguments regarding the applicable limitations period for Berglund’s § 3730(h) claim, and the Supreme Court’s direction in Graham, the court concludes Oregon’s two-year catch-all limitations period, see Or. Rev. Stat. § 12.110(1), applicable to state law claims for wrongful discharge, applies to Berglund’s retaliation claim under the FCA. See Graham, 545 U.S. at 419 and n. 3, 125 S.Ct. 2444. (“[W]e borrow the most closely analogous state time limit absent an expressly applicable one.... The likely analogous state statutes of limitations virtually all start to run when the cause of action accrues — in retaliation actions, when the retaliatory action occurs.” (citing, among others, Or.Rev. Stat. § 12.110.(1)). The record in this case establishes Berglund filed a Motion for Leave to File a Second Amended Complaint to allege a § 3730(h) claim against Boeing on April 30, 2004. The motion was granted on May 4, 2004, and Berglund filed the SAC on May 17, 2004. Thus, the limitations period for Berglund’s retaliation claim was tolled on April 30, 2004, upon filing the motion for leave to amend accompanied by the proposed amended complaint. See Wells Fargo Bank, N.A. v. Renz, No. C. 08-02561-SBA, 2011 WL 97649, *8 (N.D.Cal. Jan. 12, 2011) (“Plaintiff, however, filed its motion for leave to file the TAC on September 8, 2009, which, based on the face of the TAC, is within the limitations period.”) II. Tolling Date for the Two-Year Limitations Period Nevertheless, Berglund makes several arguments in support of his contention that none of the alleged retaliatory acts are time-barred, even under the Oregon two-year catch-all period. First, Berglund maintains his retaliation claim was filed" }, { "docid": "2885677", "title": "", "text": "sits.”); Jackson v. Bloomfield, 731 F.2d 652, 654 (10th Cir.1984) (“We will henceforth apply the New Mexico three-year statute for an injury to the person to all section 1983 actions arising in that state, even though such actions may also be analogized to other limitations statutes.”). Accrual of a claim brought under § 1983 is governed by “federal rules conforming in general to common-law tort principles.” Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973(2007) (“The accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.”)(emphasis in original); Fratus v. Deland, 49 F.3d 673, 675 (10th Cir.1995) (“While state law governs limitations and tolling issues, federal law determines the accrual of section 1983 claims.”). “In general, under the federal discovery rule, claims accrue and [t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004) (internal quotations omitted). The focus is “on whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm. In this context, a plaintiff must use reasonable diligence in seeking to discover facts giving rise to a claim for relief.” Id. at 1216 (internal citations omitted). 2. Statute of Limitations for Claims Under the NMTCA. New Mexico’s personal-injury statute provides that “[a]ctions must be brought ... for an injury to the person or reputation of any person, within three years.” NMSA 1978, § 37-1-8. Under § 4i_4_5 of the NMTCA, “actions against a ... public employee for torts shall be forever barred unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death....” NMSA 1978, § 41-4-15A. “The New Mexico Tort Claims Act expresses a clear public policy that tort claims against negligent New Mexico governmental entities should be allowed, but only if brought within two years of the date of the" }, { "docid": "18261043", "title": "", "text": "of material fact and whether the district court correctly applied the relevant substantive law.” Id. (quoting Robi v. Reed, 173 F.3d 736, 739 (9th Cir.1999)). The district court’s interpretation of ERISA also receives de novo review. Id. III A We first address Chuck’s claim that HP has wrongfully denied him benefits to which he is entitled. HP argues that this claim is time-barred because it was filed after the expiration of ERISA’s statute of limitations. Chuck contends that his cause of action never accrued, and therefore that the statute of limitations never began to run, because HP failed to provide him with adequate information regarding either his benefits denial or his rights to an internal review of that denial. We hold that a plan’s violation of its notification and review obligations under ERISA is a highly significant factor, but not a dispositive one, in determining whether a claim has accrued for benefits under ERISA. In this case, an unusual combination of circumstances indicates that Chuck’s claim is time-barred notwithstanding HP’s failure to provide proper notification and review. Chuck brings his benefits claim under 29 U.S.C. § 1132(a)(1)(B), which creates a cause of action for a benefit plan participant “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.” Because there is “no specific federal statute of limitations governing claims for benefits under an ERISA plan,” we “look to the most analogous state statute of limitations” to determine the length of the limitations period. Wetzel, 222 F.3d at 646. In this case, which arose in Oregon, there is no dispute that the most analogous state statute is Oregon’s six-year statute of limitations for breach of contract claims. See Or.Rev. Stat. § 12.080(1). Once his cause of action accrued, Chuck therefore had six years to bring his suit in federal court. Federal law, however, governs the issue of when a cause of action accrues and thereby triggers the start of the limitations period. Wetzel, 222 F.3d" }, { "docid": "2585446", "title": "", "text": "statutory and that in Oregon there was no right of action for wrongful death at common law. Storm, 47 P.3d at 479-82; Smothers, 23 P.3d at 358; Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463, 472(Or.), op. clarified by 329 Or. 369, 987 P.2d 476 (1999); Kilminster v. Day Mgmt. Corp., 323 Or. 618, 919 P.2d 474, 479 (1996); Greist v. Phillips, 322 Or. 281, 906 P.2d 789, 796 (1995); Hughes v. White (In re Estate of White), 289 Or.13, 609 P.2d 365, 368 (1980); Goheen v. Gen. Motors Corp., 263 Or. 145, 502 P.2d 223, 226 (1972); Richard v. Slate, 239 Or. 164, 396 P.2d 900, 901 (1964), superseded by statute on other grounds as stated in Rennie v. Pozzi 294 Or. 334, 656 P.2d 934, 938 (1982); see also Perham v. Portland Gen. Elec. Co., 33 Or. 451, 53 P. 14, 18 (1898) (recognizing that wrongful death is a “new right of action” created by statute); Putman v. S. Pac. Co., 21 Or. 230, 27 P. 1033, 1033-34 (1891) (same). Under these precedents, Oregon Revised Statutes section 30.020 and Oregon Revised Statutes section 12.110(4) do not violate Article I, section 10. Second, the Oregon Court of Appeals has held that even if a common law claim for wrongful death existed in Oregon in 1857, so did a pre-existing territorial law containing a six-year statute of limitations and statute of repose that accrued at the time of the occurrence of the tortious act. Barke v. Maeyens, 176 Or.App. 471, 31 P.3d 1133, 1138 (2001), rev. denied, 333 Or. 655, 45 P.3d 448 (2002) (citing Statutes of Oregon 1854, Act for the Limitation of Actions, ch. 1, § 4, p. 171). In Barke, the court measured the statute of repose under both the territorial law and Oregon Revised Statutes section 12.110(4) from the date of the allegedly negligent medical treatment by the defendant. Because the plaintiffs action was commenced more than six years later, the court ruled that any action at common law would already have been barred by the law as it existed when the framers" }, { "docid": "17711016", "title": "", "text": "of limitations, as interpreted by the Illinois Supreme Court. 735 Ill. Comp. Stat. 5/13-205. See Commonwealth Ins. Co. v. Stone Container Corp., 323 F.3d 507, 509 (7th Cir.2003). Because CIT filed its complaint on May 7, 2007, the claims for which it seeks relief must have accrued no earlier than May 7, 2002. We review de novo the district court’s dismissal of CIT’s claims as barred by the statute of limitations. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008). The disputed issue is when CIT’s claims against Maxwell accrued and triggered the running of the limitations period. Illinois follows the general rule that tort claims arising from a contract accrue when the contract is breached, whereas most tort claims accrue when the plaintiff sustains an injury. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 209 Ill.Dec. 684, 651 N.E.2d 1132, 1135 (1995). But courts also have a discovery rule to protect those who are unaware of their right to sue, “to encourage the trial of cases on their merits and avoid premature summary dismissals.” Superior Bank FSB v. Golding, 152 Ill.2d 480, 178 Ill.Dec. 720, 605 N.E.2d 514, 518 (1992). The discovery rule delays the accrual of claims until the plaintiff reasonably should know that he has been injured and that the injury was wrongfully caused. Id. A plaintiffs knowledge that his injury was wrongfully caused does not necessarily mean knowledge of actionable conduct. Knox Coll. v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976, 980-81 (1981). The cause of action accrues and the limitations period begins to run when “the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Id. In addition, in Illinois, the party seeking to utilize the discovery rule bears the burden of proving the date of discovery. Hermitage, 209 Ill.Dec. 684, 651 N.E.2d at 1138. In this case, CIT’s claims accrued before May 7, 2002, and thus are barred by the statute of limitations. CIT maintains that, as trustee of the bankrupt" }, { "docid": "428971", "title": "", "text": "period of ultimate repose for product liability actions... . [T]his objective was to be accomplished by providing that if an injury occurred within eight years of the date the product was first purchased, the injured party had an additional two-year period following the injury to bring the action.’ 59 Or.App. at 316, 650 P.2d at 1049-50 (quoting Baird, 47 Or.App. at 570, 572, 615 P.2d 335). Moreover, the court ruled that while the discovery doctrine does apply to products liability actions, it does not operate to extend the eight year statute of limitations. Id. 650 P.2d at 1049. The legal injury (physical injury which the plaintiff knows or as a reasonable person should know was caused by the defendant) must occur within eight years of the date of purchase. Id. 650 P.2d at 1052. The court concluded: “If plaintiff does not discover the defendant’s causal connection until after the eighth year, no cause of action accrues within eight years and the claim is barred.” Id. 650 P.2d at 1052-53. We hold that Philpott’s claims were barred by ORS 30.905. Philpott admits that she did not learn of a causal connection between her pelvic disorders and the Dai-kon Shield until January, 1981. This was nine years and eight months after she purchased and began using the Daikon Shield. Thus, under the principles set forth in Dortch, her claims are barred. III. EQUITABLE ESTOPPEL Philpott’s final contention is that Robins should be equitably estopped from relying on the statute of limitations. She argues that Robins’ alleged initial fraudulent conduct, including a long delay in warning doctors of known side effects, should prevent it from relying on that defense. We find no merit to Philpott’s contention. In Oregon, there are only two situations where the courts have applied equitable estoppel to prevent reliance on a statute of limitations. A defendant may be estopped if he lulled the plaintiff, by affirmative inducement, into delaying the filing of a cause of action or, similarly, if he lulled the plaintiff into believing he had no cause of action against the defendant. See Chaney v. Fields Chevrolet," }, { "docid": "2585454", "title": "", "text": "medical malpractice statute of ultimate repose, Or.Rev.Stat. § 12.110(4), provides: An action to recover damages for injuries to the person arising from any medical ... treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160 [the disability tolling statute], every [malpractice action] shall be commenced within five years from the date of treatment, omission or operation upon which the action is based This five-year repose period is absolute in the absence of fraud, deceit, or a misleading representation, for which a statutory exception applies. Urbick v. Suburban Med. Clinic, Inc., 141 Or.App. 452, 918 P.2d 453, 455-56 (1996). It does not matter when the claim accrued, or even if it has accrued. Id. at 457. . A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir.2003). All allegations of material fact are taken as true and viewed in the light most favorable to the non-movant. Nat’l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd., 228 F.3d 1043, 1049 (9th Cir.2000). However, ”[c]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Id. We review de novo a district court’s choice of law decisions, Abogados v. AT & T, Inc., 223 F.3d 932, 934 (9th Cir.2000), as well as its interpretations of state law, Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1086 n. 3 (9th Cir.2003). . Oregon requires wrongful death actions to be brought within three years from the date the injury causing death is discovered or reasonably should have been discovered. Or. Rev.Stat. § 30.020(1). On the other hand, Washington allows wrongful death actions based on medical malpractice claims to be brought within three years of the date of death. Wills v. Kirkpatrick, 56 Wash.App. 757, 785 P.2d 834, 837 (1990) (holding that general statute of limitations" }, { "docid": "17583911", "title": "", "text": "personnel properly to attend to anticipated injuries, and to stabilize patients prior to transport to the nearest general hospital 35 miles away in Bakersfield, California.” Third Amended Complaint at ¶¶ 55-57. Among other allegations, the complaint alleges Defendant failed to properly staff WSP because Defendant had contracted with Defendant Ramos to be on-call for medical emergencies instead of staffing a full-time doctor to always be on duty at WSP. DISCUSSION I. Applicability of California Code of Civil Procedure section 583420 to California’s Fictitious Defendant Pleading Procedure in Federal Court As a threshold issue Defendant contends that Plaintiffs’ claims are time-barred under the State of California’s “Doe” pleading procedures. Specifically Defendant contends that Plaintiffs’ action must be dismissed pursuant to California Code of Civil Procedure section 583.420 which grants California State courts the discretion to dismiss a suit for failure to serve a defendant within two years. Defendant, however, mistakes the nature of California Code of Civil Procedure section 583.420 and its applicability in a United States District Court. Plaintiffs’ claims are made pursuant to 42 U.S.C. § 1983 which creates a civil action for the deprivation of federally protected rights. Because 42 U.S.C. § 1983, contains no specific statute of limitations, federal courts borrow state statutes of limitations for personal injury actions in Section 1983 suits. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.2007); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir.2004). “Federal law determines when a civil rights claim accrues.” Maldonado, 370 F.3d at 954; Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001). Accrual occurs when the plaintiff has “a complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). The Ninth Circuit has explained that “[u]nder federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Maldonado, 370 F.3d at 955; Knox, 260 F.3d at 1013. Defendant is correct that in a 42 U.S.C.1983 action," }, { "docid": "22918315", "title": "", "text": "We therefore conclude that Douglas has fully complied with any possible requirement under Houston for showing the date on which he filed his complaint. 3. Application The statute of limitations on Douglas’s § 1983 claims is two years. State law governs the statute of limitations period for § 1983 suits and closely related questions of tolling. Silva v. Crain, 169 F.3d 608, 610 (9th Cir.1999). Section 1983 claims are characterized as personal injury suits for statute of limitations purposes. Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir.1986). Oregon’s statute of limitations for such suits is two years. Or.Rev.Stat. § 12.110(1). The statute does not allow tolling during periods of imprisonment. Or.Rev.Stat. § 12.160. Under federal law, a claim accrues when the plaintiff knows or should know of the injury that is the basis of the cause of action. Johnson v. California, 207 F.3d 650, 653 (9th Cir.2000). We look to Federal Rule of Civil Procedure 3 to determine when a § 1983 action commences for purposes of the statute of limitations. Sain v. City of Bend, 309 F.3d 1134, 1136 (9th Cir.2002). Rule 3 provides that “[a] civil action is commenced by filing a complaint with the court.” The events that form the basis of Douglas’s sixth claim occurred on December 1, 2002. Under the Houston mailbox rule, Douglas’s § 1983 complaint was filed on November 30, 2004, just within the two-year statute of limitations. We therefore conclude that Douglas has timely filed his sixth claim under § 1983. B. Douglas’s Remaining Claims Douglas makes several arguments as to why the statute of limitations does not bar his other claims. The district court did not have a proper opportunity to address these arguments. We generally do not “consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). We remand to the district court for consideration of Douglas’s arguments in the first instance. Conclusion We hold that the Houston mailbox rule applies to § 1983 complaints filed by pro se prisoners. Under the mailbox rule, Douglas timely filed at" }, { "docid": "9523804", "title": "", "text": "infliction of emotional distress. These claims have their roots in the events of over three decades ago, and the parties agree that the statute of limitations applicable to both the federal and the state claims is two years. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (holding that the appropriate state statute of limitations to borrow for section 1983 actions is that for recovery of damages for personal injuries); Or.Rev.Stat. § 12.110 (1997). The question remains: Two years from when? Because it is inequitable to bar someone who has no idea he has been harmed from seeking redress, the statute of limitations has generally been tolled by the “discovery rule.” Under this rule, the statute only begins to run once a plaintiff has knowledge of the “critical facts” of his injury, which are “that he has been hurt and who has inflicted the injury.” United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In addition to being a rule of Oregon law, see, e.g., Gaston v. Parsons, 318 Or. 247, 864 P.2d 1319, 1323 (1994), the discovery rule has been observed as a matter of federal law, see Kubrick, 444 U.S. at 120, 100 S.Ct. 352. There is a twist to the discovery rule: The plaintiff must be diligent in discovering the critical facts. As a result, a plaintiff who did not actually know that his rights were violated will be barred from bringing his claim after the running of the statute of limitations, if he should have known in the exercise of due diligence. See Herrera-Diaz v. United States, 845 F.2d 1534, 1537 (9th Cir.1988). But “what [a plaintiff] knew and when [he] knew it are questions of fact.” Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir.1986). The district court held that Bibeau had failed to diligently investigate his symptoms; as a result he had run out of time to file suit. Notably, however, the district court did not specify when Bibeau was, or should have been, aware of the fact that he had" }, { "docid": "2585447", "title": "", "text": "Under these precedents, Oregon Revised Statutes section 30.020 and Oregon Revised Statutes section 12.110(4) do not violate Article I, section 10. Second, the Oregon Court of Appeals has held that even if a common law claim for wrongful death existed in Oregon in 1857, so did a pre-existing territorial law containing a six-year statute of limitations and statute of repose that accrued at the time of the occurrence of the tortious act. Barke v. Maeyens, 176 Or.App. 471, 31 P.3d 1133, 1138 (2001), rev. denied, 333 Or. 655, 45 P.3d 448 (2002) (citing Statutes of Oregon 1854, Act for the Limitation of Actions, ch. 1, § 4, p. 171). In Barke, the court measured the statute of repose under both the territorial law and Oregon Revised Statutes section 12.110(4) from the date of the allegedly negligent medical treatment by the defendant. Because the plaintiffs action was commenced more than six years later, the court ruled that any action at common law would already have been barred by the law as it existed when the framers adopted Article I, section 10. Id. at 1139. Accordingly, there could be no constitutional violation. Id. In this case, the breach of duty that resulted in Laura Fields’ death occurred on August 3, 1994, but no wrongful death action was filed until December 23, 2002, more than six years later. As in Barke, then, there could be no constitutional violation. The Oregon Supreme Court will not exercise its discretion to consider a certified question unless, among other requirements, “there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state.” Or.Rev.Stat. § 28.200. We therefore must consider cases of the Oregon Court of Appeals before deciding to certify a question to the Oregon Supreme Court. W. Helicopter, 811 P.2d at 631. Barke, a decision by the Oregon Court of Appeals, holds that Oregon’s wrongful death statutes of limitations and repose, as applied here, do not violate Article I, section 10, of .the Oregon Constitution. In view of that holding, we decline to certify to the Oregon Supreme" }, { "docid": "19974190", "title": "", "text": "the occurrence of some event other than the injury which gave rise to the claim.” Raithaus v. Saab-Scandia of America, Inc., 784 P.2d 1158, 1160 (Utah 1989). Statutes of limitations preclude[ ] the plaintiff from proceeding, ... the right (moral or legal) goes on, but the plaintiff simply cannot go to court in order to enforce it.... A statute of repose, however, has a more sub stantive effect because it can bar a suit even before the cause of action could have accrued, or, for that matter, retroactively after the cause of action has accrued. In proper circumstances, it can be said to destroy the right itself. It is not concerned with the plaintiffs diligence; it is concerned with the defendant’s peace. Underwood Cotton Co., Inc. v. Hyundai, 288 F.3d 405, 408-09 (9th Cir.2002) (internal citations omitted) (referring to the distinctions between the two types of statute as “arcane”). The difference is manifest in Oregon’s statutory scheme. For example, Or.Rev. Stat. § 12.110(1), not at issue in this case, is a statute of limitations, providing that “[a]n action for any injury to the person or rights of another, not arising on contract ... shall be commenced within two years .... ” Under this statute, it is evident that injury must be experienced before the time limit starts to run because an action cannot be commenced until after the injury element of the prima facie case is satisfied. However, the statute of repose at issue here, Or.Rev.Stat. § 12.115(1), states that “[i]n no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.” This statute does not require injury before it operates. Therefore, if § 12.115(1) applies to the nearly thirty year old negligence claim in this case, and § 309 does not operate to impose a discovery rule upon it, that claim is barred. 1. Plain Meaning vs. Ambiguity The first step in construing the meaning of a statute is to determine whether the language at issue has a plain meaning." }, { "docid": "8603776", "title": "", "text": "WEIGEL, Senior District Judge. Jerry W. Davis appeals a district court’s dismissal of his civil rights action for lack of prosecution. He also appeals the denial of his motion for relief from an earlier judgment dismissing defendants Gary Sussman and the Portland Police Bureau, his motion for assistance of counsel, and his motion to compel discovery. We affirm the district court judgment. The district court correctly determined that Davis’s action was barred by a two-year statute of limitations. The district court relied upon this Court’s holding in Kosikowski v. Bourne, 659 F.2d 105,108 (9th Cir.1981) that the two-year limitation of the Oregon Tort Claims Act, Or.Rev. Stat. § 30.275, applies to § 1983 actions brought in the district of Oregon. Under the Supreme Court’s recent holding in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), Section 1983 claims are to be characterized as personal injury actions for statute of limitations purposes. Although under Wilson v. Garcia the district court should have applied Oregon’s general tort statute, Or.Rev.Stat. § 12.110(1), rather than the Oregon Tort Claims Act, both statutes provide for a two-year limitations period. Therefore, the district court properly found that a two-year statute of limitations barred petitioner’s action. The district court did not abuse its discretion in denying Davis’ motions and denying him relief from the judgment entered against him. Nor did the court abuse its discretion in dismissing his action against all remaining defendants for lack of prosecution. AFFIRMED. . Appellant also contends that his cause of action accrued on June 29, 1983, when the Oregon Supreme Court reversed his conviction, rather than at the time of his wrongful arrest on March 16, 1981. He claims that because he filed his complaint January 16, 1984, less than two years after the reversal of the charges against him, his action is not barred. These claims lack merit. See Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir.1983) (‘‘[W]here false arrest or illegal search and seizure is alleged, the conduct and asserted injury are discrete and complete upon occurrence, and the cause of action can" }, { "docid": "19974189", "title": "", "text": "claim, holding that the claim is barred by Oregon’s statute of repose for negligent injury to person or property, Or.Rev.Stat. § 12.115(1). The McDonalds argue that the court below erred in applying the Oregon statute because Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, 42 U.S.C. § 9601-9675, grafts a discovery rule onto state statutes of limitations. We agree. The district court held that CERCLA § 309 does not apply because § 12.115(1) is a statute of repose, not a statute of limitations. However, the term “statute of limitations” in CERCLA § 309 is ambiguous and the legislative history of the section indicates that its meaning includes statutes of repose like § 12.115(1). Statutes of limitations and repose are distinct legal concepts with distinct effects. “A statute of limitations requires a lawsuit to be filed within a specified period of time after a legal right has been violated.... On the other hand, statutes of repose are designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim.” Raithaus v. Saab-Scandia of America, Inc., 784 P.2d 1158, 1160 (Utah 1989). Statutes of limitations preclude[ ] the plaintiff from proceeding, ... the right (moral or legal) goes on, but the plaintiff simply cannot go to court in order to enforce it.... A statute of repose, however, has a more sub stantive effect because it can bar a suit even before the cause of action could have accrued, or, for that matter, retroactively after the cause of action has accrued. In proper circumstances, it can be said to destroy the right itself. It is not concerned with the plaintiffs diligence; it is concerned with the defendant’s peace. Underwood Cotton Co., Inc. v. Hyundai, 288 F.3d 405, 408-09 (9th Cir.2002) (internal citations omitted) (referring to the distinctions between the two types of statute as “arcane”). The difference is manifest in Oregon’s statutory scheme. For example, Or.Rev. Stat. § 12.110(1), not at issue in this case, is a statute of limitations, providing" } ]

[ { "docid": "19369584", "title": "", "text": "Admin. News 1978, pp. 5787, 6364 (stating that “ ‘[v]alue, as of the effective date of the plan,’ as used in ... proposed 11 U.S.C. ... 1129(a)(9) [and several other sections], indicates that the promised payment under the plan must be discounted to present value as of the effective date of the plan”); cf. id. at 412, U.S.Code Cong. & Admin.News 1978, p. 6368 (“[T]he court may confirm a plan over the objection of a class of secured claims if the members of that class are unimpaired or if they are to receive under the plan property of a value equal to the allowed amount of their secured claims .... The property is to be valued as of the effective date of the plan, thus recognizing the time-value of money.”). The Bankruptcy Courts have almost uniformly ruled that the proper method of providing such creditors with the equivalent of the value of their claim as of the effective date of the plan is to charge interest on the claim throughout the payment period. See, e.g., In re Bay Area Services, 10 Bankr.Ct.Dec. (CRR) 101, 26 B.R. 811 (Bkrtcy.M.D.Fla.1982); In re Moore, 9 Bankr.Ct.Dec. (CRR) 1246, 25 B.R. 131 (Bkrtcy.N.D.Tex.1982); cf. In re Busman, 5 B.R. 332, 341 (E.D.N.Y.1980) (holding that identical language in 11 U.S.C. § 1325(a)(5)(B)(ii) requires that when secured tax claim is to be paid in installments pursuant to a Chapter 13 plan, the creditor “is entitled to a percentile interest factor, to protect the creditor from loss caused by its being paid over time”). But see In re Burgess Wholesale Manufacturing Opticians, 16 B.R. 733 (Bkrtcy.N.D.Ill.) (holding that there is no right to post-petition interest on unsecured tax claims in Chapter 11 proceeding when other unsecured creditors are not paid in full), aff’d, 24 B.R. 554 (N.D.Ill.1982). Although Bankruptcy Courts generally agree that creditors should receive interest on deferred tax payments pursuant to § 1129(a)(9)(C), they have not agreed on the proper method for determining the appropriate interest rate. See, e.g., In re Bay Area Services, supra (current prevailing prime rate plus 10% adjustment for inflation); In" } ]

[ { "docid": "6582750", "title": "", "text": "for “each allowed secured claim provided for by the plan” can be met in one of three ways. Section 1325(a)(5) provides: (a) Except as provided in subsection (b), the court shall confirm a plan if— (5) with respect to each allowed secured claim provided for by the plan— (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder; and Movant has not accepted Debtor’s plan. Debtor does not intend to surrender the furniture to Movant. Debtor, therefore, must pay Movant the value of its allowed secured claim. Under this “cram down” provision, Debtor’s payments to Movant under his Chapter 13 plan must have a present value equal to Movant’s allowed secured claim. In re Mothershed, 62 B.R. 113, 114 (Bankr.E.D.Ark.1986); In re Mitchell, 39 B.R. 696, 700 (Bankr.D.Or.1984); In re Klein, 10 B.R. 657, 661 (Bankr.E.D.N.Y.1981). The purpose of the present value requirement is to compensate the creditor for the delay in receiving payment of the allowed secured claim. 5 Collier on Bankruptcy It 1325.06[4][b][iii][B] (15th ed. 1989). Bankruptcy courts have almost uniformly agreed that the proper method of providing creditors with the equivalent of the value of their claim is to require the debtor to pay interest on the claim throughout the payment period. See United States v. Southern States Motor Inns, Inc. (In re Southern States Motor Inns, Inc.), 709 F.2d 647, 650 (11th Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). The issue before the Court is what rate of interest represents present value. There is no consensus among the courts on what constitutes an appropriate rate of interest. Among the varying rates that have been used: (1) Contract Rate of Interest Prudential Insurance Co. of America v." }, { "docid": "20241789", "title": "", "text": "examination. The Court finds that the Debtor’s proposed amended Plan shortening the “drop dead” and sale date would be feasible. Poteet and Dorman object to confirmation contending the Debtors’ Plan fails the requirements of § 1325(a)(5)(B)(ii) which provides that, with respect to each allowed secured claim provided for by the plan, “the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim.” Under this section a Chapter 13 plan must provide for payments to secured creditors totaling no less than the present value of the secured creditors’ claims. In re Hungerford, 19 Mont. B.R. 103, 111 (Bankr.D.Mont.2001). The Ninth Circuit Bankruptcy Appellate Panel noted in Trejos v. VW Credit, Inc., et al. (In re Trejos ), 374 B.R. 210, 220 n. 9 (9th Cir. BAP 2007): The text of § 1325(a)(5)(B)(ii) did not change under 9 BAPCPA . The phrase “as of the effective date” previously was recognized to require an interest component be paid so as to ensure that the creditor receive the present value of its claim. The Supreme Court addressed the calculation of present value interest under § 1325(a) (5) (B) (ii) in Till v. SCS Credit Corp., 541 U.S. 465, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004), and set “prime-plus” as the proper method for determining the interest rate that would provide present value. Most courts that have considered the issue have held that, since § 1325(a)(5)(B)(ii) remains unchanged under BAPCPA, Till remains valid under BAPCPA. Because the issue is not before us in this appeal, we save it for another day. The Debtor’s Plan in the instant case does not propose a “cram down” of interest rate, and does not seek to cram down the valuation of the creditors’ security under 11 U.S.C. § 506(a) and § 1325(a)(5)(B)(ii) as discussed in Hunger-ford, 19 Mont. B.R. at 111-16. Instead, the Plan provides at paragraph 1 that Pruyn, Poteet and Dorman and allowed secured claims will be paid in full, and the new “drop dead”" }, { "docid": "18755540", "title": "", "text": "such claim deferred cash payments ... of a value, as of the effective date of the plan, equal to the allowed amount of such claim. 11 U.S.C. § 1129(a)(9). (2) For the purpose of this subsection, the condition that a plan be fair and equitable with respect to a class includes the following requirements: (A) With respect to a class of secured claims, the plan provides— ****** (II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate’s interest in such property.... 11 U.S.C. § 1129(b)(2)(A)(i)(II). The relevant Chapter 13 “present value” plan provisions read as follows. (a) Except as provided in subsection (b), the court shall confirm a plan if— ****** (4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date; (5) with respect to each allowed secured claim provided for by the plan— ****** (B)(ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim.... 11 U.S.C. § 1325(a)(4), (a)(5)(B)(ii). An examination of the relevant Chapter 11 statutes reveals that a creditor of a reorganizing debtor must “receive” deferred payments which equal, “on the effective date of the plan,” the “allowed amount” of the creditor’s claim. This construction has led to the conclusion that, under 11 U.S.C. Section 1129(a)(9), a discount factor must be applied, and present value payments received. See, e.g., Matter of Burgess Wholesale Mfg. Opticians, Inc., 721 F.2d 1146, 1147 (7th Cir.1983). Only one of the Chapter 13 “present value” provisions materially differs from its Chapter" }, { "docid": "4675556", "title": "", "text": "Sixth Circuit has not fixed the “cram down” interest rate necessary to provide present value for purposes of § 1129(b)(2)(A)(i)(II). As Chief Judge Paine noted recently in In re Memphis Partners Limited Partnership, 99 B.R. 385 (Bankr.M.D.Tenn.1989), there is Sixth Circuit authority interpreting similar “present value” language in 11 U.S.C.S. § 1325(a)(5) (1987). In. Memphis Bank & Trust Co. v. Whitman, 692 F.2d 427 (6th Cir.1982), the Sixth Circuit determined that the holder of an allowed secured claim at confirmation in a Chapter 13 case is entitled to interest on its claim paid over time pursuant to § 1325(a)(5) at “the current market rate of interest used for similar loans in the region.” Whitman, 692 F.2d at 431. Judge Merritt explained that § 1325(a)(5) has the effect of requiring the creditor to make “a new loan to the debtor in the amount of the current value of the collateral. Under this theory, the most appropriate interest rate is the current market rate for similar loans at the time the new loan is made.... ” Id. The present value language of § 1325(a)(5)(B)(ii) discussed in Whitman, is by words and design indistinguishable from the present value language applicable at cram down in a Chapter 11 case under § 1129(b)(2)(A)(i)(II). Other courts have reasoned by similar analogy to the present value language applicable to the payment of tax claims under § 1129(a)(9)(C). See, e.g., United States v. Neal Pharmacal Co., 789 F.2d 1283 (8th Cir.1986); In re Camino Real Landscape Maintenance Contractors, 818 F.2d 1503 (9th Cir.1987); In re Southern States Motor Inns, Inc., 709 F.2d 647 (11th Cir.1983) cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). Whitman stands for two propositions: (1) the appropriate rate of interest to provide present value to the holder of an allowed secured claim at cram down is “the current market rate of interest used for similar loans in the region”; and, (2) current market rate for similar loans should be determined “at the time the new loan is made.” “Current market rate of interest used for similar loans in the region”" }, { "docid": "12955321", "title": "", "text": "debtor does not change that creditor's position as a competing claimant for the estate’s limited assets as part of the larger distribution scheme in bankruptcy. Kelton, supra, 137 B.R. at 21. However, the Kelton court relied in large part on its own opinion in In re Laymon, 117 B.R. 856 (Bankr.W.D.Tex.1990), which was later reversed by the Fifth Circuit. See In re Laymon, 958 F.2d 72 (5th Cir.1992). The persuasiveness of Kelton has therefore been significantly diluted. See also In re Navis Realty, supra. . 11 U.S.C. § 1129 provides, in relevant part: (b)(2) For the purposes of this subsection, the condition that a plan be fair and equitable with respect to a class includes the following requirements: (A) With respect to a class of secured claims, the plan provides— (i) (I) that the holders of such claims retain the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims; and (II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate’s interest in such property .... It is to be noted that the language set forth at 11 U.S.C. § 1129(b)(2)(A)(i)(II), entitling a secured creditor to the present value of its collateral, is substantively identical to the language of 11 U.S.C. § 1325(a)(5)(B)(ii), and most courts interchangeably apply the analysis used under one section to the other. In re DeMaggio, supra, 175 B.R. 144. Therefore, cases discussing the concept of “present value” interest under the chapter 13 plan are persuasive even in the chapter 11 context. Rankin v. DeSarno, 89 F.3d 1123 (3d Cir.1996), cert. denied, _ U.S. _, 117 S.Ct. 943, 136 L.Ed.2d 832 (1997). . The Rash decision criticized Valenti's view with respect to the valuation of collateral, but left undisturbed Valenti's statement that a secured" }, { "docid": "4675557", "title": "", "text": "The present value language of § 1325(a)(5)(B)(ii) discussed in Whitman, is by words and design indistinguishable from the present value language applicable at cram down in a Chapter 11 case under § 1129(b)(2)(A)(i)(II). Other courts have reasoned by similar analogy to the present value language applicable to the payment of tax claims under § 1129(a)(9)(C). See, e.g., United States v. Neal Pharmacal Co., 789 F.2d 1283 (8th Cir.1986); In re Camino Real Landscape Maintenance Contractors, 818 F.2d 1503 (9th Cir.1987); In re Southern States Motor Inns, Inc., 709 F.2d 647 (11th Cir.1983) cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). Whitman stands for two propositions: (1) the appropriate rate of interest to provide present value to the holder of an allowed secured claim at cram down is “the current market rate of interest used for similar loans in the region”; and, (2) current market rate for similar loans should be determined “at the time the new loan is made.” “Current market rate of interest used for similar loans in the region” is difficult of application at cram down in a Chapter 11 case. Both the debtor’s expert and the expert offered by FHLMC observed that there is no market for the loan proposed by this plan: The allowance of secured claims under 11 U.S.C.S. § 506 (1985) compels that Chapter 11 plans will usually propose to pay allowed secured claim holders an amount exactly equal to the value of the underlying collateral. It follows inevitably that the cram down treatment of a secured claim holder will often involve a 100% loan to value ratio. There will be no “down payment” or post-confirmation equity in the property to protect the lender. The borrower will be a debtor in a Chapter 11 case whose credit unworthiness has been fully demonstrated. It was the testimony at the confirmation hearing that there is no market for a loan with these characteristics. Both the debtor’s expert and the expert offered by FHLMC explained that real estate mortgages are priced by lenders at percentage points over the rate for treasury bills of" }, { "docid": "1183153", "title": "", "text": "1325(aX5)(B)(ii), also is $2,385.95. CONCLUSIONS OF LAW Section 1325(a) of the Bankruptcy Code provides (in pertinent part): The court shall confirm a [chapter 13] plan if— (1) the plan complies with the provisions of this chapter and with other applicable provisions of this title; [and] (5) with respect to each allowed secured claim provided for by the plan— (A) the holder of the claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder; 11 U.S.C. § 1325(aXl), (5). Thus, chapter 13 provides that a debtor’s plan may not be confirmed unless it deals with a secured claim other than a residence mortgage in one of three ways: with creditor acceptance of the plan, by the so-called “cram down”; or, by surrender of the collateral. In the instant case, the plan would utilize the “cram down” method of dealing with a secured claim. Under the language of the chapter 13 “cram down” provisions, the creditor must receive the present value equivalent of the allowed amount of the secured claim. 11 U.S.C. § 1325(a)(5)(B)(ii). See generally 124 Cong.Rec. H 11, 107 (daily ed. Sept. 28, 1978); id. S 17,423 (daily ed. Oct. 6, 1978). The present value of such claim is the amount the creditor would realize if he had in his hands the principal amount which is due and owing as of the effective way which produces a return on his investment for a period equal to the extension proposed in the debtor’s plan (the extension period is normally 36 months ). Congress contemplated that the courts would fix an appropriate discount rate, apply this rate to the allowed amount of the secured claim and determine the present value equivalent of the allowed secured claim. Of course, as both the House and" }, { "docid": "11712612", "title": "", "text": "489 (1988); Walter W. Miller, Jr., Bankruptcy Code Cramdown Under Chapter 11: New Threat to Shareholder Interests, 62 B.U.L.Rev. 1059 (1982); Isaac M. Pachulski, The Cram Down and Valuation Under Chapter 11 of the Bankruptcy Code, 58 N.C.L.Rev. 925 (1980); Waltraud S. Scott, Deferred Cash Payments to Secured Creditors in Cram Down of Chapter 11 Plans: A Matter of Interest, 63 Wash.L.Rev. 1041 (1988); Todd W. Ruskamp, In the Interest of Fairness: Interest Payments in Bankruptcy, 67 Neb.L.Rev. 646 (1988); J. Ronald Trost, Business Reorganizations Under Chapter 11 of the New Bankruptcy Code, 34 Bus.Law. 1309 (1979); Jonathan K. Van Patten, Chapter 12 in the Courts, 38 S.D.L.Rev. 52 (1993). . The award of interest to a secured creditor in Chapter 12 is mandated by § 1225(a)(5)(B), which requires as a condition of confirmation, that, absent the creditor's consent or surrender of its collateral, (ii) the value, as of the effective date of the plan, of property to be distributed by the trustee or the debtor under the plan on account of such claim is not less than the allowed amount of such claim.... The identical requirement is contained in § 1325(a)(5)(B)(ii) of Chapter 13. The comparable section in Chapter 11, § 1129(b)(2)(A)(i)(II), requires: that each holder of a [secured claim] receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder's interest in the estate’s interest in such property.... Finally, § 506(b) requires: To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. . \"Cramdown\" is a term of art. Essentially, it means that under appropriate circumstances a Court may confirm a plan of reorganization over the objection of" }, { "docid": "13344140", "title": "", "text": "secured claim provided for by the plan— (B)(ii) the value as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim[.] Under Chapter 13, the secured creditor is not permitted to repossess and foreclose on its security interest. See In re Valenti, 105 F.3d 55, 58 (2d Cir.1997). The debtor instead has the option of either surrendering the property to the secured creditor or maintaining possession of the property. See id. If the debtor decides to maintain possession, the secured creditor retains its security interest and the debtor’s reorganization plan must provide for payments to this secured creditor totaling no less than the present value of the secured creditor’s allowed claim. See id To insure payment of the present value as of the plan’s effective date, Chapter 13 plan payments must incorporate an appropriate discount interest rate. See id. When, as in the instant case, the debtor attempts to have the Chapter 13 plan confirmed that provides for an interest rate that is lower than the interest rate in the original financing agreement, over the objection of the secured creditor, the plan is colloquially referred to as a “cramdown.” See id. There are no reported cases in the Eleventh Circuit or the Southern District of Florida that set the standard for determining the “current market rates” of interest for secured claims pursuant to 11 U.S.C. § 1325(a)(5)(B)(ii) in Chapter 13 cramdown situations. This Court therefore looks to the Eleventh Circuit’s interpretation of similar provisions of the Bankruptcy Code. The present value language of 11 U.S.C. § 1325(a)(5)(B)(ii) is virtually identical to the present value language set forth in 11 U.S.C. § 1129(a)(9)(C). In United States v. Southern States Motor Inns, Inc. (In the Matter of Southern States Motor Inns, Inc.), 709 F.2d 647, 652-653 (11th Cir.1983), cert. denied 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984), the Eleventh Circuit construed this latter provision in the context of a Chapter 11 reorganization case concerning the appropriate interest rate for" }, { "docid": "16761384", "title": "", "text": "specified under 26 U.S.C. § 6621 of the Internal Revenue Code, the legal rate of interest, and the adoption of a compromise rate between the contract rate and the market rate. The starting point of analysis is the statutory language of § 1325(a)(5), which requires as a condition of confirmation that: (5) with respect to each allowed secured claim provided for by the plan— (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien secured such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder. It is commonly recognized that, absent a secured creditor’s consent, where a debtor retains property and proposes to pay the allowed secured claim through the plan, the phrase “value, as of the effective date of the plan” requires the debtor to make interest payments through the life of the chapter 13 plan so as “not to dilute the value of [the secured creditor’s] claim through delay in payment.” Memphis Bank and Trust Company v. Whitman, 692 F.2d 427, 429 (6th Cir.1982). The' present value language of § 1325(a)(5)(B)(ii) is virtually identical to the present value language appearing in several other statutory provisions of the Bankruptcy Code, including chapter 11 and chapter 12 provisions. United States v. Neal Pharmacol Company, 789 F.2d 1283 (8th Cir.1986), citing In the Matter of Southern States Motor Inns, Inc., 709 F.2d 647, 652 (11th Cir.1983), cert. denied 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). A review of cases applying the identical language to determine the appropriate discount rate in other contexts is instructive. In re Aztec Company, 99 B.R. 388 (Bankr.M.D.Tenn.1989), reheard 113 B.R. 414 (Bankr.M.D.Tenn.1990). In the context of the repayment of priority tax obligations through a chapter 11 plan of reorganization, under 11 U.S.C. § 1129(a)(9)(C), several circuit courts, including the Eighth," }, { "docid": "16544033", "title": "", "text": "holder of such claim retain the lien securing such claim; and the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim.” 11' U.S.C. § 1325(a)(5)(B). Both Chapter 11, see 11 U.S.C. § 1129(b)(2)(A)(i)(II), and Chapter 12, see 11 U.S.C. § 1225(a)(5)(B)(ii), contain analogous cramdown provisions. Courts have considered all three provisions to be similar and have analyzed them interchangeably. Before a plan invoking the cramdown provision can be confirmed, a bankruptcy court must make two determinations. First, it must determine the value of the collateral as of the effective date of the plan. See Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 960-62, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). Once that value is determined, the bankruptcy court must then decide upon a stream of payments over the course of the plan that will provide the creditor with “value ... not less than the allowed amount of such claim.” 11 U.S.C. § 1325(a)(5)(B)(ii). To compensate a secured creditor for its delay in receiving the value of the collateral, the creditor must receive interest to account for the time value of money. See John K. Pearson, et al., Ending the Judicial Snipe Hunt: The Search for the Cramdown Interest Rate, 4 Am. Bankr.Inst. L.Rev. 35, 36-38 (1996). Thus, the second determination a bankruptcy court must make is the rate of interest to be charged. This issue has caused significant disagreement among the courts of appeals, bankruptcy courts and commentators. See Monica Hartman, Comment, Selecting the Correct Cram-down Interest Rate in Chapter 11 and Chapter 13 Bankruptcies, 47 U.C.L.A. L.Rev. 521, 532-44 (1999) (discussing the dominant approaches and the criticism each has received); David G. Epstein, Don’t Go and Do Something Rash About Cram Down Interest Rates, 49 Ala. L.Rev. 435, 443-59 (1998) (discussing the divisions among courts of appeal); Matthew Y. Harris, Comment, Chapter 13 Cram Down Interest Rates, 67 Miss. L.J. 567, 569-80 (1997) (discussing the current approaches and their critics). B. Our ultimate task is to" }, { "docid": "12912933", "title": "", "text": "of such claim retain the lien securing such claim; and (ii) the value, ¿s of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder; 11 U.S.C. § 1325(a) (1993). Under this provision, the court can confirm a plan if one of three conditions is satisfied with respect to secured creditors (a category which, of course, includes oversecured creditors): the secured creditor accepts the plan; the debtor surrenders the property securing the claim to the creditor; or the debtor invokes the so-called “cram-down” power of section 1325(a)(5)(B). The present case concerns the cram-down option, pursuant to which the debtor can keep the property over the objection of the creditor. The creditor then retains a lien securing the claim and the debtor must pay the creditor over the life of the plan (which under Chapter 13 is not to exceed five years) amounts totalling the present value of the allowed secured claim as of the effective date of the plan. See Associates Commercial Corp. v. Rash, _ U.S. _, _ - _, 117 S.Ct. 1879, 1882-83, 138 L.Ed.2d 148 (1997). Posteonfirmation interest, or plan interest, is a function of the present value requirement of the cram-down provision. The Code does not define the term “present value” but legislative history describes the mechanical process of determining present value in a manner consistent with the use of the term by the economic and financial community. See In re Snider Farms, Inc., 83 B.R. 977, 988-89 (Bankr.N.D.Ind.1988) (not-ing that “present value” is a financial term and recounting legislative history of a related provision). Thus, a bankruptcy court confirming a Chapter 13 plan that invokes the cram-down option would undertake the following calculation: first, the court would determine the sum of the principal amount (including section 506(b) interest) that would be due if it were to be paid in total on the date of confirmation; next, the court would determine the schedule of" }, { "docid": "12912932", "title": "", "text": "Orix Credit Alliance, Inc. v. Delta Resources, Inc. (In re Delta Resources, Inc.), 54 F.3d 722, 729 (11th Cir.) (“[A]n oversecured creditor ... is entitled to receive postpetition interest as part of its claim at the time of confirmation of a plan or reorganization .... ”), cert. denied, 516 U.S. 980, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995); In re DeMaggio, 175 B.R. at 150 (“[Section] 506(b) determines the exact amount of the claim....”); In re Foertsch, 167 B.R. 555, 560 (Bankr.D.N.D.1994) (“[Section] 506(b) allows an oversecured creditor to enhance its claim by adding to it postpetition interest....”). Section 506(b) thus defines the allowed claim of an oversecured creditor; treatment of that claim after confirmation is governed by Section 1325, which establishes the circumstances under which the court may confirm a Chapter 13 debtor’s reorganization plan: (a) ... the court shall confirm a plan if— (5) with respect to each allowed secured claim provided for bythe plan— (A) the holder of such claim has accepted the plan; (B) (i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, ¿s of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder; 11 U.S.C. § 1325(a) (1993). Under this provision, the court can confirm a plan if one of three conditions is satisfied with respect to secured creditors (a category which, of course, includes oversecured creditors): the secured creditor accepts the plan; the debtor surrenders the property securing the claim to the creditor; or the debtor invokes the so-called “cram-down” power of section 1325(a)(5)(B). The present case concerns the cram-down option, pursuant to which the debtor can keep the property over the objection of the creditor. The creditor then retains a lien securing the claim and the debtor must pay the creditor over the life of the plan (which under Chapter 13 is not to exceed five years) amounts totalling" }, { "docid": "4675555", "title": "", "text": "of such claim deferred cash payments totalling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate’s interest in such property.” 11 U.S. C.S. § 1129(b)(2)(A)(i)(II). As explained in the legislative history, cram down over the objection of an impaired allowed secured claim holder “contemplates a present value analysis that will discount value to be received in the future ... if the interest rate paid is equivalent to the discount rate used, the present value and the face future value will be identical.” H.R. REP. NO. 595, 95th Cong., 1st Sess. 414 (1977), reprinted in, 1978 U.S. CODE CONG. & ADMIN. NEWS 5787, 6370. See In re Kain, 86 B.R. 506 (Bankr.W.D.Mich.1988); In re Park Avenue Partners Limited Partnership, 95 B.R. 605 (Bankr.E.D.Wis.1988); In re Camino Real Landscape Maintenance Contractors, 818 F.2d 1503 (9th Cir.1987); United States v. Neal Pharmacal Co., 789 F.2d 1283 (8th Cir.1986). The United States Court of Appeals for the Sixth Circuit has not fixed the “cram down” interest rate necessary to provide present value for purposes of § 1129(b)(2)(A)(i)(II). As Chief Judge Paine noted recently in In re Memphis Partners Limited Partnership, 99 B.R. 385 (Bankr.M.D.Tenn.1989), there is Sixth Circuit authority interpreting similar “present value” language in 11 U.S.C.S. § 1325(a)(5) (1987). In. Memphis Bank & Trust Co. v. Whitman, 692 F.2d 427 (6th Cir.1982), the Sixth Circuit determined that the holder of an allowed secured claim at confirmation in a Chapter 13 case is entitled to interest on its claim paid over time pursuant to § 1325(a)(5) at “the current market rate of interest used for similar loans in the region.” Whitman, 692 F.2d at 431. Judge Merritt explained that § 1325(a)(5) has the effect of requiring the creditor to make “a new loan to the debtor in the amount of the current value of the collateral. Under this theory, the most appropriate interest rate is the current market rate for similar loans at the time the new loan is made.... ” Id." }, { "docid": "22829569", "title": "", "text": "as modified pursuant to section 1325(a)(5) of this title.” 11 U.S.C. § 1322(c)(2). Section 1325(a)(5) provides: (a) Except as provided in subsection (b), the court shall confirm a plan if— (5) with respect to each allowed secured claim provided for by the plan— (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C)the debtor surrenders the property securing such claim to such holder____ 11 U.S.C. § 1325(a)(5). The “allowed secured claim” of which § 1325(a)(5) speaks is derived through valuation and “bifurcation” in accordance with § 506(a). As the Supreme Court explained, “Section 506 ... governs the definition and. treatment of secured claims, ... [and] provides that a claim is secured only to the extent of the value of the property on which the lien is fixed; the remainder of that claim is considered unsecured.” Ron Pair, 489 U.S. at 238-39, 109 S.Ct. at 1029 (footnotes omitted). The Supreme Court has recognized that undersecured claims are split by § 506(a) and then can be “crammed down” in a Chapter 13 case by § 1325(a)(5): Under the cramdown option [of § 1325(a)(5)(B) ], the debtor is permitted to keep the property over the objection of the creditor, [provided] the creditor retains the lien securing the claim, [citation omitted], and the debtor is required to provide the creditor with payments, over the life of the plan, that will total the present value of the allowed secured claim, ie., the present value of the collateral, [citation omitted]. The value of the allowed secured claim is governed by § 506(a) of the Code. Associates Commercial Corp. v. Rash, — U.S. -, ---, 117 S.Ct. 1879, 1882-83, 138 L.Ed.2d 148 (1997). Accord United States v. Arnold, 878 F.2d 925, 928 (6th Cir.1989) ( “Under this section [1325(a)(5) ], the debtor can ‘cramdown’" }, { "docid": "19010362", "title": "", "text": "the holder of an allowed secured claim in the same position economically as if the debtor exercised the option of surrendering the collateral. Through the payment of interest, the creditor is compensated for the delay in receiving the amount of the allowed secured claim, which would be received in full immediately upon confirmation if the collateral were liquidated. 5 Collier on Bankruptcy, 111325.06(3)(B), p. 1325-36, 37. The best interests of creditors test found in § 1325(a)(4) states that the Chapter 13 plan may be confirmed if: the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date; (Emphasis added). Section 1325(a)(4). Colliers describes this as meaning that the Chapter 13 plan offer the holder of each allowed unsecured claim property, including deferred payments, of a present value not less than the liquidation value of such claim. In other words, the court must capitalize the proposed payments, by converting deferred payments offered the creditor into an equivalent capital sum as of the effective date of the plan. Section 1325(a)(4) cannot be properly applied simply by comparing the sum total of the proposed deferred payments with the likely recovery on the unsecured claim in the event of liquidation. Id. at 1325.05(2)(b), pp. 1325-20, 21. Our Court of Appeals in In re Hardy, 755 F.2d 75 (6th Cir.1985), explained that this provision requires that Chapter 13 plans offer even unsecured creditors interest for the delay in receiving their full payment, if the hypothetical Chapter 7 case would have resulted in prompt full payment of their claims. Likewise, cramdown on the holder of an allowed unsecured claim in Chapter 11 also requires that the present value of the claim be paid. Before a Chapter 11 plan can be crammed down, it must first pass the following test: it must not discriminate unfairly and is fair and equitable with respect toward" }, { "docid": "12912934", "title": "", "text": "the present value of the allowed secured claim as of the effective date of the plan. See Associates Commercial Corp. v. Rash, _ U.S. _, _ - _, 117 S.Ct. 1879, 1882-83, 138 L.Ed.2d 148 (1997). Posteonfirmation interest, or plan interest, is a function of the present value requirement of the cram-down provision. The Code does not define the term “present value” but legislative history describes the mechanical process of determining present value in a manner consistent with the use of the term by the economic and financial community. See In re Snider Farms, Inc., 83 B.R. 977, 988-89 (Bankr.N.D.Ind.1988) (not-ing that “present value” is a financial term and recounting legislative history of a related provision). Thus, a bankruptcy court confirming a Chapter 13 plan that invokes the cram-down option would undertake the following calculation: first, the court would determine the sum of the principal amount (including section 506(b) interest) that would be due if it were to be paid in total on the date of confirmation; next, the court would determine the schedule of installment payments to be made pursuant to the plan; finally, the court would impose interest at a rate equal to that necessary to recoup the value of the secured claim determined in the first step. We have previously determined that interest under § 1325(a)(5)(B)(ii) “should be fixed at the rate on a United States Treasury instrument with a maturity equivalent to the repayment schedule under the debtor’s reorganization plan.” In re Valenti, 105 F.3d 55, 64 (2d Cir.1997). However, “[bjecause the rate on a treasury bond is virtually risk-free, the § 1325(a)(5)(B)(ii) interest rate should also include a premium to reflect the risk to the creditor in receiving deferred payments under the reorganization plan.” Id. The court below determined that in the Milhams’ case, this equation resulted in an 8.5% post-confirmation interest rate. Key Bank argues that it should receive a higher rate of interest post-confirmation than one that would assure it the present value of its claim as of the confirmation date for two reasons: (1) it is entitled to its contract rate of" }, { "docid": "7259414", "title": "", "text": "the Court addresses the issue in detail sua sponte. In a Chapter 13 cram-down, the debtor is permitted to retain property in which a creditor holds a security interest, even over creditor’s objection, so long as two conditions are met: (i) the secured creditor must retain a continuing lien on the property; and (ii) the secured creditor must receive from the debtor “the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim [which shall be] not less than the allowed amount of such claim.” 11 U.S.C. § 1325(a)(5)(B)(i) and (ii). In other words, the creditor must be paid the present value of its allowed, secured claim, or the Plan cannot be confirmed over the creditor’s objection. See In re Lockard, 234 B.R. 484, 494 (Bankr.W.D.Mo.1999). The purpose of these conditions is to place the secured creditor in an economic position equivalent to the one it would have occupied had it received its allowed secured amount immediately. See Lawrence P. King, 8 Collier on Bankruptcy ¶ 1325.06[3][b][iii][B] at 1325-35 (15th ed. rev., 1997). Thus, if the Plan proposes to pay the secured claim over time, it is necessary that the Plan provide for interest at such a rate that will put the creditor into the same economic position that it would have been if it had been paid its claim immediately rather than over time. Determining what that interest rate should be in cram down cases has not been an easy task for courts, however, and the courts have come up with many different methods or formulas for determining the appropriate interest rate in such cases. These methods go by various labels, including “the market rate approach,” “the coerced loan approach,” “the cost of funds approach, “the contract rate rebuttable presumption approach,” and so on. See generally Keith M. Lundin, 2 Chapter IS Bankruptcy ¶ 5.51 (Wiley 1994); 8 Collier on Bankruptcy ¶ 1325.06[3][b][iii][B]; David G. Epstein, Don’t Go and Do Something Rash About Cram Doum Interest Rates, 49 Ala. L.Rev. 435 (1998); Matthew Y. Harris, Chapter IS" }, { "docid": "12955322", "title": "", "text": "holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate’s interest in such property .... It is to be noted that the language set forth at 11 U.S.C. § 1129(b)(2)(A)(i)(II), entitling a secured creditor to the present value of its collateral, is substantively identical to the language of 11 U.S.C. § 1325(a)(5)(B)(ii), and most courts interchangeably apply the analysis used under one section to the other. In re DeMaggio, supra, 175 B.R. 144. Therefore, cases discussing the concept of “present value” interest under the chapter 13 plan are persuasive even in the chapter 11 context. Rankin v. DeSarno, 89 F.3d 1123 (3d Cir.1996), cert. denied, _ U.S. _, 117 S.Ct. 943, 136 L.Ed.2d 832 (1997). . The Rash decision criticized Valenti's view with respect to the valuation of collateral, but left undisturbed Valenti's statement that a secured creditor must receive the present value of its claim. In addition, Rash does not address the concept of \"present value interest”. . The Code permits the debtor to modify the rate of interest paid to a secured creditor post-confirmation (as opposed to postpetition, i.e., the intervening time period between the filing date and the effective date of a plan). Section 1123(b)(5) provides that Chapter 11 plans may \"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.” (Emphasis added). 11 U.S.C. § 1123(b)(5). The City is not protected by the language of § 1123(b)(5) for two reasons: first, the antimodification exception is limited to the rights of the mortgagee of the debtor's principal residence. In re Harko, supra (construing similar language found in the parallel provision governing Chapter 13, i.e., § 1325(b)(2)); In re Dingley, 189 B.R. 264, 269 (Bankr.N.D.N.Y.1995). In addition, statutory tax liens do not constitute “security interests.” 11 U.S.C. § 101(51), (53); Rankin v. DeSarno," }, { "docid": "15862745", "title": "", "text": "Ltd., II), 994 F.2d 1160, 1163 (5th Cir.), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993). We review findings of fact by the bankruptcy court under the clearly erroneous standard and decide issues of law de novo. Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th Cir.), cert. denied, — U.S. -■, 115 S.Ct. 573,130 L.Ed.2d 490 (1994); Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 434 (5th Cir.1994). We are aided here by excellent opinions from the bankruptcy court and the district court. III. DISCUSSION A. Statutory Framework Section 1325(a) of the Bankruptcy Code, 11 U.S.C. § 1325(a), sets forth six prerequisites to confirmation of a Chapter 13 plan. The requirement at issue in this ease, § 1325(a)(5), concerns the plan’s treatment of allowed secured claims. That provision states in relevant part: [T]he court shall confirm a plan if— (5) with respect to each allowed secured claim provided for by the plan— (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder____ 11 U.S.C. § 1325(a)(5). Thus, a debtor seeking confirmation of his plan has three options with respect to each allowed secured claim included in the plan. If the creditor holding the allowed secured claim accepts the plan, nothing more is required. Alternatively, the debtor may invoke the so-called “cram down” power of subsection (B) to confirm the plan over the creditor’s objection. Under this option, the creditor retains his lien and the debtor agrees to distribute to the creditor, over the life of the plan, property whose present value is not less than the amount of the creditor’s allowed secured claim. Finally, the debtor may surrender the property securing the claim' —" } ]

[ { "docid": "16383448", "title": "", "text": "court’s offer to correct the implication was accepted. Such improper comment is not necessarily plain error requiring reversal where the trial court takes prompt and appropriate action to correct any mistaken implications the jury may have drawn from the comment. United States v. Bruzgo, 373 F.2d 383, 389 (3rd Cir. 1967). We are of the view that the trial court, by immediately admonishing the prosecutor and by instructing the jury that the defendant’s failure to testify raises no presumption against him, acted in a manner sufficiently prompt and appropriate to cure the impropriety. The court did all it could, short of declaring a mistrial, to counterbalance the comment. See United States v. Knox Coal Co., 347 F.2d 33, 44-46 (3d Cir. 1965), cert. denied sub nom. Lippi v. United States, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965); United States v. DiCarlo, 64 F.2d 15, 17-18 (2d Cir. 1933). Cf. Langford v. United States, 178 F.2d 48, 54 (9th Cir. 1949), cert. denied, 339 U.S. 938, 70 S.Ct. 669, 94 L.Ed. 1355 (1950); Sterling v. United States, 333 F.2d 443, 446-450 (9th Cir. 1964), cert. denied, 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344 (1964). But see Collins v. United States, 383 F.2d 296, 302 (10th Cir. 1967). We accept the experienced trial judge’s assessment of the significance of the incident after the curative instructions were given and find that any error remaining was harmless beyond a reasonable doubt. 28 U.S.C. § 2111; Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). We have reviewed appellant’s other allegations of error and find them without merit. The judgment is affirmed." } ]

[ { "docid": "23261846", "title": "", "text": "statement, did not stress an inference of guilt from silence as a basis of conviction, and was followed by curative instructions. See United States v. Armstrong, 654 F.2d at 1336. See also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (no reversible error where error was harmless beyond a reasonable doubt). Moreover, a cautionary instruction concerning Soulard’s right not to present evidence and the fact that no adverse inferences could be drawn against him from such a failure was given by the District Court in its general charge to the jury. This was sufficient to cure any prejudice Soulard may have suffered from the allegedly impermissible comment. See United States v. Fleishman, 684 F.2d at 1336. The District Court did not commit reversible error by not giving the instruction during the prosecutor’s rebuttal argument. V. MOTION FOR JUDGMENT OF ACQUITTAL Soulard argues that his motion for a judgment of acquittal pursuant to rule 29 of the Federal Rules of Criminal Procedure was erroneously denied because the properly admitted evidence was insufficient to sustain a conviction of the offenses charged in the indictment. A. STANDARD OF REVIEW Rule 29(a) of the Federal Rules of Criminal Procedure requires the trial court to grant a motion for judgment of acquittal “if the evidence is insufficient to sustain a conviction.” The trial court must determine whether, viewing the evidence in the light most favorable to the prosecution, the jury could reasonably find the defendant guilty beyond a reasonable doubt. United States v. Hazeem, 679 F.2d 770, 772 (9th Cir.), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982). On appeal, we apply the same test in reviewing the trial court’s decision. Id. B. DISCUSSION Viewing all the evidence in the light most favorable to the Government, we are convinced that a rational trier of fact could easily have concluded that Soulard was guilty, beyond a reasonable doubt, of willfully subscribing false corporate and individual tax returns. The District Court did not err by denying Soulard’s motion for judgment of acquittal. The judgments of conviction" }, { "docid": "20403882", "title": "", "text": "twelve transcript pages. Inzunza points out no portions of argument where the prosecutor “stress[es] an inference of guilt from silence as the basis for conviction.” Id. at 769. Like the comment in Smith, the White Sox story was a “lead-in” for a different line of argument: that Inzunza had brought shame to public office, and that numerous conversations between the defendants had been recorded. Finally, the district judge gave a pointed limiting instruction on the matter. Under these circumstances, we are satisfied that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The language of Kennedy suggests that reversal may yet be mandatory where there is “evidence that could have supported acquittal.” The district court stated that the evidence of a quid pro quo was “not overwhelming.” However, this statement by itself does not show that the evidence supported acquittal. Taking away the improper argument in this case, see United States v. Velarde-Gomez, 269 F.3d 1023, 1034-35 (9th Cir.2001) (en banc), the thrust of the prosecution’s proof (and the nature of Inzunza’s defense) changes very little. The primary evidence in the case was the recorded conversations and testimony of other witnesses showing Inzunza’s course of dealing. For these reasons, the denial of a new trial under Griffin was not error. H. Other Objections to Closing Argument Inzunza contends that the government made several other improper closing arguments, some of which were objected to at trial. We review de novo the district court’s finding that closing argument did not constitute misconduct. United States v. Perlaza, 439 F.3d 1149, 1169 n. 22 (9th Cir.2006). We review for plain error, however, arguments not objected to in the district court. United States v. Combs, 379 F.3d 564, 568 (9th Cir.2004). None of Inzunza’s claims in this area has merit. 1. Comment on the Failure to Call a Witness The prosecution’s comment on Inzunza’s failure to call Anthony Wagner as a witness was not improper because “it [was] not phrased to call attention to defendant’s own failure to testify.” United States" }, { "docid": "2499948", "title": "", "text": "was made with respect to that fact. His comment, as the Court heard it, was with reference and in rebuttal to the argument made by each and all of the defendants’ counsel in this case that the Government had failed to establish where the property went or that any of the defendants had received the property or any of the proceeds thereof.” We are inclined to agree with the trial court that the language used was not “ * * * manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, supra, 224 F.2d at 170. Accord, Sterling v. United States, 9 Cir., 1964, 333 F.2d 443, 449, cert. denied, 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344; United States v. Wright, 7 Cir., 1962, 309 F.2d 735, 738-739. It is also noted that the instruction requested by the appellants regarding the defendants’ failure to testify was given by the trial court. The court’s instructions here may very well have removed any possible prejudice from the ambiguous comment made by the prosecution. See, Knowles v. United States, supra; Sterling v. United States, supra. Finally, we note that the Supreme Court has recently stated in Chapman v. State of California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705: “* * * before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. -X- -X- *» The 21 words objected to here came during the course of lengthy closing arguments covering four hours. The words placed in context are ambiguous, they were made in passing, and they were not emphasized by repetition. Moreover, a proper instruction submitted by defendants regarding the defendants’ failure to testify was given. We feel that under these circumstances we can declare that if the comment by the prosecution did have reference to the failure of appellants to testify, we are convinced beyond a reasonable doubt" }, { "docid": "13308282", "title": "", "text": "transgression has occurred is whether the remark was manifestly intended or was “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Samuels v. United States, 398 F.2d 964 (5th Cir. 1968), cert. den. 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969). The remark here made does not meet that test. The record reveals that when he was interrupted, the prosecutor was attempting to say that the defendant did not have to take the stand in order to rebut the presumption of possession of recently stolen property, but could introduce other evidence. He was trying to point out the necessity for some evidence in the defendant’s case to rebut the legal presumption. It does not appear that the jury would have understood the remark otherwise. Luke and Henry v. Wainwright, 431 F.2d 485 (5th Cir. 1970); Garcia v. United States, 315 F.2d 133 (5th Cir. 1963); Samuels v. United States, supra; Williams v. Wainwright, 416 F.2d 1042 (5th Cir. 1969); Parks v. Wainwright, 429 F.2d 1240 (5th Cir. 1970). In any event, with no manifest intention on the part of the prosecutor to comment in such a way as to make defendant’s failure to take the stand evidence for jury consideration, and with positive instructions to the jury by the court that nothing was to be considered or presumed from this fact, and in the light of the weight of the evidence, any impropriety in the remark and the way it was made must be held to be harmless error beyond any reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Other remarks made by the prosecutor in his opening and closing arguments claimed to be prejudicial furnish no ground for reversal. The remark that Dr. Aranda’s papers and credit cards were stolen is a reasonable inference that could be drawn from the circumstances of their disappearance. Taylor v. United States, 279 F.2d 10 (5th Cir. 1960). The argument that if the car was obtained “by lies" }, { "docid": "23172523", "title": "", "text": "Id. at 322-23. We also hold that a subsequent waiver of Miranda rights does not render admissible comment on the defendant’s pre-waiver silence. Therefore, Velarde’s eventual waiver of his Miranda rights was irrelevant to the question of admissibility of his post-arrest, pr e-Miranda silence. C. Harmless Error Because Velarde’s counsel properly objected by motion in limine and at trial to the admission of testimony regarding Velarde’s post-arrest, pr e-Miranda silence, we must next consider whether the district court’s erroneous decision to admit the evidence of silence was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”); United States v. Kallin, 50 F.3d 689, 693 (9th Cir.1995) (“Whether improper references to a defendant’s silence ... are harmless is reviewed under a ‘harmless-beyond-a-reasonable-doubt’ standard.”) (citation omitted); see also Fed.R.App. P. 52; cf. Whitehead, 200 F.3d at 638-39 (finding the same constitutional violation as here, but affirming the conviction under the plain error standard of review). Under the harmless error standard, we must determine whether “absent the prosecutor’s allusion to [Velarde’s silence and demeanor], is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.” United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (citation omitted). In the context of comments on silence, we consider three factors: “[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.” United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991) (applying harmless error review); see also Kallin, 50 F.3d at 693 (quoting and following Newman); Scarborough v. Arizona, 531 F.2d 959, 962 (9th Cir.1976) (relied upon by Newman). The burden of proving a constitutional error harmless beyond a reasonable doubt rests upon the government. Chapman, 386 U.S. at 24, 87 S.Ct. 824. Upon consideration of the" }, { "docid": "23018985", "title": "", "text": "an absence of nervousness when she was arrested and showed a lack of surprise when the cocaine was discovered. The evidence exposes Moreno’s inconsistent statements and implausible explanations which could lead a reasonable trier of fact to doubt Moreno’s credibility. Doubts of Moreno’s credibility likely vitiated the effect of any favorable evidence, including her testimony. Thus, a rational trier of fact could have found that Moreno knew of the cocaine in the briefcase and the bags beyond a reasonable doubt. See Martinez, 577 F.2d at 962. We find that sufficient evidence exists to satisfy the knowledge element of Moreno’s conviction. B. Invocation of Right to Counsel Moreno alleges reversible error in the court’s refusal to grant a mistrial on the basis that the prosecutor improperly elicited testimony on her invocation of her right to counsel. See Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding prosecution’s comments on defendant’s post-Miranda silence a constitutional violation). Moreno moved for a mistrial on this basis but the court denied her motions. We review the district court’s refusal to grant a mistrial for abuse of discretion. See United States v. Webster, 162 F.3d 308, 345 (5th Cir.1998); United States v. Willis, 6 F.3d 257, 263 (5th Cir.1993). The government’s use of a defendant’s silence during its case-in-chief may constitute a constitutional violation. See United States v. Rodriguez, 43 F.3d 117, 121 (5th Cir.1995); Chapman v. United States, 547 F.2d 1240, 1245 (5th Cir.1977); see also Doyle, 426 U.S. at 618-19, 96 S.Ct. 2240. If we find an error, we apply the doctrine of harmless constitutional error by reviewing the record to determine whether the error was harmless beyond a reasonable doubt. See United States v. Carter, 953 F.2d 1449, 1462 (5th Cir.1992); Chapman, 547 F.2d at 1247-48; see also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967) (explaining harmless constitutional error doctrine). We also seek to determine whether the remark was a spontaneous comment by the witness or a comment prompted by the prosecutor. See United States v. Smith, 635 F.2d 411," }, { "docid": "2038946", "title": "", "text": "firearm. Therefore, we vacate Smith’s conviction on that count. The Confrontation Clause error does not affect the other three counts of Smith’s conviction — the charges for heroin conspiracy, heroin possession, and possessing a gun during a drug crime. The evidence of Smith’s prior state-court convictions was not necessary to, nor introduced for the purpose of proving, the prosecution’s case against Smith on those other three counts. Smith argues that the taint or prejudice from the erroneously admitted prior New York convictions spilled over to the other three counts in this case. Given the facts and circumstances of this case, we disagree. The clerk’s letters were redacted and did not indicate the nature of Smith’s prior offenses. That minimized any prejudice. Moreover, the prior convictions were not introduced to prove the other three counts against Smith, and the evidence on those other counts was overwhelming. That evidence included (but was not limited to) many recordings of phone calls between Smith and Glover in which they discussed their drug distribution ring; Smith’s recorded description of his guest flushing his drugs down the toilet; and the 316 grams of heroin, two loaded firearms, and $27,730 in cash seized from Smith’s bedroom when he was home alone. The Confrontation Clause violation was thus “harmless beyond a reasonable doubt” as to the other three counts of conviction. United States v. Wilson, 605 F.3d 985, 1014 (D.C.Cir.2010); see generally Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Prophet v. Duckworth, 580 F.2d 926, 927 (7th Cir.1978) (under Chapman, “the error would be harmless if ... because of the overwhelming nature of the evidence against him, the jury could not have reasonably reached a different verdict even if the prior conviction were not used”); United States v. Greene, 578 F.2d 648, 653-54 (5th Cir.1978) (“even if the reference to the prior offenses in closing argument was improper .... the prejudicial effect, if any, of the comments was slight in relation to the overwhelming evidence of guilt,” and under Chapman, “any impropriety was harmless beyond a reasonable doubt”); Bates" }, { "docid": "23441201", "title": "", "text": "statements “clearly involve an expression of counsel’s opinion on the question of defendant’s guilt.” This is certainly a fair characterization of some of them. However, although we cannot condone prosecutorial expression of personal belief in an accused’s guilt, such expression is not reversible error when the remarks fairly construed refer only to belief based on the evidence and not to an opinion formed from facts not in evidence. See United States v. Meisch, 370 F.2d 768, 773 (3 Cir. 1966); Gradsky v. United States, 373 F.2d 706, 710 (5 Cir. 1967); Orebo v. United States, 293 F.2d 747, 749 (9 Cir. 1961), cert. den., 368 U.S. 958, 82 S.Ct. 402, 7 L.Ed.2d 389 (1962). We believe that the first and third remarks set out above are properly construed as belief based on the evidence. The prosecutor’s statement that “I can tell you that if I know of any witness who could elaborate at all, no matter what they had to say,” appears to have been directly provoked by Schartner’s counsel. During the trial, Schartner’s counsel attempted to interject into the trial the figure of Dennis James Jones, referred to at an earlier point in this opinion. As mentioned earlier Jones was a Government witness at Schartner’s first trial, and it was upon the basis of the discovery that his testimony had been false that a new trial was granted. Schartner’s counsel argued to the jury that they should draw an inference favorable to his client from the failure of the United States to call Jones. The statement of the Government’s counsel apparently was intended to rebut this insinuation that the United States was attempting to hide a witness, and in these circumstances this statement was not reversible error. See Gray v. United States, 394 F.2d 96, 101 (9 Cir. 1968) and Green v. United States, 282 F.2d 388, 391 (9 Cir. 1960), cert. den., 365 U.S. 804, 81 S.Ct. 469, 5 L.Ed.2d 460 (1961). Another argument to the jury challenged by Schartner, as we have stated, was the prosecuting attorney’s rhetorical question “ * * * is this the way" }, { "docid": "20403881", "title": "", "text": "admonition that “comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice.” 380 U.S. at 614, 85 S.Ct. 1229 (internal quotation marks and citation omitted). The fact that the inquisitor laments the failure to give an answer is beside the point. The Smith court confronted similar rhetoric addressed to the defendant: “This isn’t how it was supposed to end, is it Mr. Smith? You’re not supposed to be here in Seattle. You’re supposed to be down in the Florida Keys on a big sailboat, enjoying all that money you were going to make by importing marijuana.” 282 F.3d at 769. The court reserved the question whether that statement was an impermissible comment because it held that the comment was harmless beyond a reasonable doubt. Id. at 769-70. In this case, too, the district judge indicated that the comment was a single, isolated incident. It occurred toward the end of the prosecution’s rebuttal, but it was not close to the last thing the jury heard; the argument continues for another twelve transcript pages. Inzunza points out no portions of argument where the prosecutor “stress[es] an inference of guilt from silence as the basis for conviction.” Id. at 769. Like the comment in Smith, the White Sox story was a “lead-in” for a different line of argument: that Inzunza had brought shame to public office, and that numerous conversations between the defendants had been recorded. Finally, the district judge gave a pointed limiting instruction on the matter. Under these circumstances, we are satisfied that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The language of Kennedy suggests that reversal may yet be mandatory where there is “evidence that could have supported acquittal.” The district court stated that the evidence of a quid pro quo was “not overwhelming.” However, this statement by itself does not show that the evidence supported acquittal. Taking away the improper argument in this case, see United States v. Velarde-Gomez, 269 F.3d 1023, 1034-35 (9th Cir.2001) (en banc)," }, { "docid": "8120418", "title": "", "text": "that the error in this case is plain and therefore reviewable, we must apply a discrete standard to determine the appropriateness of a reversal. Of course, in cases such as this involving constitutional errors, our duty is to reverse unless we are “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828,17 L.Ed.2d 705 (1967) . In Scarborough v. Arizona, 531 F.2d 959 (9th Cir. 1976) we considered the harmfulness of a prosecutorial comment very similar to the one now before us. There we applied the example of Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968) , holding that the error is not harmless where the “comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported the acquittal.” Scarborough v. Arizona, supra, 531 F.2d at 962, quoting Anderson v. Nelson, supra, 390 U.S. at 524, 88 S.Ct. 1133. We held that the comment in Scarborough met these criteria and was therefore not harmless beyond a reasonable doubt. However, it is also clear that the prosecutorial comment must not be evaluated in the abstract. On the contrary, it must be judged in light of the evidence as a whole. See United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977); Egger v. United States, supra, 509 F.2d at 747. In the case before us, our review of the record as a whole persuades us that the prosecutor’s concededly improper comment was harmless beyond a reasonable doubt. Here there was independent evidence already in the record and properly before the jury of Lopez’s declination to explain the shooting. In fact, his post-arrest failure to explain that the shooting was an accident was first placed before the jury by Lopez’s own counsel in her cross-examination of the FBI agent who transported Lopez to the county jail. It is true that the prosecutor" }, { "docid": "23191399", "title": "", "text": "to establish guilt, not on the defendants to prove innocence, and that the defendants had no burden to prove anything. Later the court instructed the jury that the prosecutor’s comments were improper and they should not be considered. Metcalf contends that the prosecutor’s comments infringed his Fifth Amendment privilege and violated the doctrine of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and that neither the court’s admonition nor the later instruction rendered the error harmless. The comments in this case are quite different from a specific comment on the defendant’s failure to take the stand. “[W]here the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.” United States ex rel. Leak v. Follette, 418 F.2d 1266, 1270 (2nd Cir. 1969), cert. denied 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); accord, United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972). Here the disputed comments were specifically directed to the lack of contradictory witnesses and contained no explicit reference to the failure of the appellants to testify. We do not think that it focused attention on their failure to testify. The trial judge understood the comment to be directed at the weight of the evidence because in his correction he instructed the jury as to the burden of proof, not the Fifth Amendment rights of the appellants. Even if we found the comment impermissible, it was harmless error. The comment by the prosecutor was brief, composed of only three sentences. The silence of the appellants was not mentioned to the jury. The trial judge immediately interrupted and properly instructed the jury as to the burden of proof. Any impropriety was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174," }, { "docid": "15374106", "title": "", "text": "alibi witnesses. Particularly in light of the extensive alibi corroboration produced at trial by petitioner’s codefendant, the jury could have placed little credence in petitioner’s unsubstantiated account of the evening of the murder, regardless of his failure to tell police then about the alibi. On the other hand, an eyewitness to the shooting confidently identified petitioner as the killer. Clothes matching the precise description of those worn by the killer were found in petitioner’s apartment. A witness testi fied that petitioner admitted complicity in the crime. For these reasons, we conclude beyond a reasonable doubt that the Doyle error “did not contribute to the verdict obtained.” Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828. Petitioner’s remaining points do not warrant extended discussion. The statements of the prosecutor that petitioner interprets as expressions of a personal opinion as to petitioner’s guilt are more reasonably read as permissible comments on the state of the evidence. United States v. Smith, 441 F.2d 539, 540 (9th Cir. 1971); Orebo v. United States, 293 F.2d 747, 749 (9th Cir. 1961). Similarly, petitioner’s complaint that the prosecutor injected racism into the trial reads far too much into a single exchange. Affirmed. . We need not consider the state’s contention that Doyle should not apply retroactively, since the equivalent of the Doyle rule prevailed in both the federal and state courts in California when this case was tried. See Cockrell v. Oberhauser, 413 F.2d 256 (9th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969). . Petitioner does not explain why his counsel did not object to the prosecutor’s cross-examination and closing argument regarding petitioner’s pretrial silence. The absence of any demonstrated “cause” for this failure to comply with the California contemporaneous objection rule might bar review of petitioner’s federal constitutional claim in this proceeding (Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)), were it not for the fact that the state courts did not rely solely upon the procedural default in ruling on petitioner’s direct appeal. On appeal, the California District Court of" }, { "docid": "2038947", "title": "", "text": "guest flushing his drugs down the toilet; and the 316 grams of heroin, two loaded firearms, and $27,730 in cash seized from Smith’s bedroom when he was home alone. The Confrontation Clause violation was thus “harmless beyond a reasonable doubt” as to the other three counts of conviction. United States v. Wilson, 605 F.3d 985, 1014 (D.C.Cir.2010); see generally Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Prophet v. Duckworth, 580 F.2d 926, 927 (7th Cir.1978) (under Chapman, “the error would be harmless if ... because of the overwhelming nature of the evidence against him, the jury could not have reasonably reached a different verdict even if the prior conviction were not used”); United States v. Greene, 578 F.2d 648, 653-54 (5th Cir.1978) (“even if the reference to the prior offenses in closing argument was improper .... the prejudicial effect, if any, of the comments was slight in relation to the overwhelming evidence of guilt,” and under Chapman, “any impropriety was harmless beyond a reasonable doubt”); Bates v. Nelson, 485 F.2d 90, 95-96 (9th Cir.1973) (“In view of the overwhelming evidence ... we find that any error in the admission of priors or use of them during the trial was harmless beyond a reasonable doubt within the meaning of Chapman. ... ”). To sum up on the Confrontation Clause issue, we find error and vacate the judgment with regard to the felon-in-possession conviction but not the other three counts of conviction. B At trial, FBI Agent Bevington testified about his understanding of certain slang that was used by Smith, Glover, and others in recorded telephone conversa tions — words such as dope, key, and hardball. Bevington testified as a lay witness under Federal Rule of Evidence 701. Smith claims that the FBI agent’s testimony necessarily constituted expert testimony and thus should not have been allowed as lay opinion testimony. Bevington interpreted the slang terms based on his experience investigating drug crimes. For example, he stated: “I don’t know that it’s common knowledge in the general public, but in drug circles it’s well" }, { "docid": "14737674", "title": "", "text": "that there was no testimony or evidence that the government persuaded, or in any way induced, Nasta to make the sales. The government’s remarks amounted to no more than a general comment on the posture of the ease with respect to Nasta’s claim of entrapment. Cf. United States ex rel. D’Ambrosio v. Fay, 349 F.2d 957 (2 Cir.), cert. denied, 382 U.S. 921 (1965). Defense counsel’s speculative and totally unsubstantiated argument to the jury necessitated and justified the government’s response. The jury must have been well aware that in addition to Nasta at least three other persons, Bilello, Kaufman and “Frankie,” could have supplied the evidence that the government noted was lacking, if such evidence existed. Furthermore, the trial court in its charge instructed the jury that evidence of inducement could come from the government’s own witnesses on direct or cross-examination. Thus the government’s comments in no way focused on appellant’s failure to take the stand. Even assuming that language in the government’s summation was ambiguous and indirectly invited the jury’s attention to appellant’s failure to take the stand, no possible prejudice could have resulted. The evidence against appellant was overwhelming, and there was nothing in the case to support the claim of entrapment except defense counsel’s argument. If there was error, it was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). Finally, where .as here the comments are at most ambiguous, an instruction to the jury will suffice to avoid possible prejudice. It is appropriate, therefore, to require counsel to make-an immediate objection and request curative instructions. Since counsel did not do this but merely moved for a mistrial at the conclusion of the summations, appellant is precluded from raising the issue now. See Holden v. United States, 388 F.2d 240 (1 Cir. 1968); United States v. Weisman, 366 F.2d 767, 768 (2 Cir. 1966); cf. United States v. Kyle, 257 F.2d 559, 564 (2 Cir. 1958), cert. denied, 358 U.S. 937 (1959). We have reviewed the trial court’s Jencks Act rulings with respect to the Secret Service case report and the report of" }, { "docid": "23261845", "title": "", "text": "101 S.Ct. 925, 66 L.Ed.2d 842 (1981). B. DISCUSSION The comments Soulard finds objectionable did not directly refer to Soulard’s failure to take the stand; the comments referred to defense counsel, rather than to Soulard by direct reference. Moreover, they referred mainly to the strength of the Government’s ease, and to the extent they referred to the defense, they were a fair reply to arguments raised by defense counsel in closing argument as to the reasons why no defense was put forward. See United, States v. Dumas, 658 F.2d 411, 415 (5th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982). Thus, when taken in context and fairly construed, the comments do not appear to have been manifestly intended or to have been of such a character that the jury would necessarily take them as a comment on Soulard’s failure to testify. Even if the prosecutor had directly referred to Soulard’s failure to testify, our Court has been reluctant to reverse where, as here, the prosecutorial comment was a single isolated statement, did not stress an inference of guilt from silence as a basis of conviction, and was followed by curative instructions. See United States v. Armstrong, 654 F.2d at 1336. See also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (no reversible error where error was harmless beyond a reasonable doubt). Moreover, a cautionary instruction concerning Soulard’s right not to present evidence and the fact that no adverse inferences could be drawn against him from such a failure was given by the District Court in its general charge to the jury. This was sufficient to cure any prejudice Soulard may have suffered from the allegedly impermissible comment. See United States v. Fleishman, 684 F.2d at 1336. The District Court did not commit reversible error by not giving the instruction during the prosecutor’s rebuttal argument. V. MOTION FOR JUDGMENT OF ACQUITTAL Soulard argues that his motion for a judgment of acquittal pursuant to rule 29 of the Federal Rules of Criminal Procedure was erroneously denied because the properly admitted" }, { "docid": "14910962", "title": "", "text": "comments violated Triplett’s Fifth Amendment right to remain silent does not end our inquiry. The law is well settled that the jury’s guilty verdict will not be set aside if this type of constitutional error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (Chapman). Under Chapman, the government bears the burden of proof on the harmless error question. Id. at 24, 87 S.Ct. 824 (“[c]ertainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless”). But see United States v. Malone, 49 F.3d 393, 398 (8th Cir.) (stating, in dictum, that “[w]e reverse for prosecutorial misconduct only when the defense can show ... that the [prosecutor’s improper] remarks ‘prejudi-cially affected the defendant’s substantial rights so as to deprive [him] of a fair trial” ’), cert. denied, 516 U.S. 877, 116 5.Ct. 208, 133 L.Ed.2d 141 (1995). In assessing harmlessness, “[t]he question a reviewing court must ask is this: absent the prosecutor’s [improper comments], is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?” United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). More specifically, “[i]n determining the prejudicial effect of prose- cutorial misconduct, this court considers three factors: (1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant’s guilt; and (3) the curative actions taken by the trial court.” United States v. Johnson, 968 F.2d at 771 (citations omitted). In the present case, the government argues that there was no “cumulative effect” because there was “no attempt, actual or implied,” to link the challenged testimony of Officer Walker with the prosecutor’s improper comments in closing arguments. Brief for Appellee at 24. Second, the government argues that the properly admitted evidence of Triplett’s guilt was “overwhelming.” Id. Third, the government notes that, except for the instruction to the prosecutor not to comment on the defendant, no additional curative" }, { "docid": "15374105", "title": "", "text": "for the prosecutor to suggest contrary inferences. United States v. Helina, 549 F.2d 713, 717-18 (9th Cir. 1977). See also United States v. Arenholz, 569 F.2d 420, 422 (5th Cir. 1978). Because the prosecutor’s rebuttal remarks were permissible under the circumstances, the Doyle error in cross-examination added nothing not properly before the jury when trial ended. See United States v. Lopez, 575 F.2d 681, 685-86 (9th Cir. 1978). To hold differently would entail the anomalous result of permitting petitioner to allow the fact of post-arrest silence to enter the record, elect to argue the proper inference to be drawn from the silence, and yet claim that the prosecutor could not make responding comments. Moreover, the remainder of the evidence precludes doubt about the verdict. Petitioner’s alibi was inconclusive and uncorroborated. His own testimony placed him within a few blocks of the Spartan Market at the time of the murder. It left key periods of time unaccounted for. Although petitioner claimed to have been with several friends at the time of the crime, he called no alibi witnesses. Particularly in light of the extensive alibi corroboration produced at trial by petitioner’s codefendant, the jury could have placed little credence in petitioner’s unsubstantiated account of the evening of the murder, regardless of his failure to tell police then about the alibi. On the other hand, an eyewitness to the shooting confidently identified petitioner as the killer. Clothes matching the precise description of those worn by the killer were found in petitioner’s apartment. A witness testi fied that petitioner admitted complicity in the crime. For these reasons, we conclude beyond a reasonable doubt that the Doyle error “did not contribute to the verdict obtained.” Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828. Petitioner’s remaining points do not warrant extended discussion. The statements of the prosecutor that petitioner interprets as expressions of a personal opinion as to petitioner’s guilt are more reasonably read as permissible comments on the state of the evidence. United States v. Smith, 441 F.2d 539, 540 (9th Cir. 1971); Orebo v. United States, 293 F.2d 747," }, { "docid": "2006102", "title": "", "text": "Professional Responsibility. ABA Code DR 7-106(C) (4) and EC 7-24. As we stated in United States v. Schartner, 426 F.2d 470, 477 (3d Cir. 1970): [A]lthough we cannot condone prose-cutorial expression of personal belief in an accused’s guilt, such expression is not reversible error when the remarks fairly construed refer only to belief based on the evidence and not to an opinion formed from facts not in evidence. Accord, United States v. Meisch, 370 F. 2d 768, 773 (3d Cir. 1966). Thus, both our previous decisions and the ABA Standard, which we now formally adopt, condemn such prosecutorial comments, even if based on the evidence. However, such comments, if based on the evidence, are not reversible errors per se under Schartner. It is clear here that the comments of personal opinion by the prosecutor in his closing statement were based on the evidence. We recognize the line between permissible and impermissible comment is a thin one, and precision of expression can be difficult. Nevertheless, we strongly disapprove expressions of personal opinion by prosecutors on credibility and guilt. However, we do not find those here sufficiently prejudicial, in light of the overwhelming evidence against defendant, to constitute reversible error. Prosecutor’s References to Non-Record Matters In addition to interjecting personal opinion into his summation, the prosecutor also made comments based on facts outside of the record. The district court referred to only one instance of such misconduct — the prosecutor’s statement of his own experience concerning the effects of a drug which defendant testified he had used. However, we think there were actually three such instances. The district court noted that it was the prosecutor’s first trial, that it lasted seven days, and that the court instructed the jury to consider only the evidence. In these circumstances, the district court did not consider the error sufficient to warrant a new trial. As to the impropriety of such prosecutorial statements, we find the view of Standard 5.9 of the ABA Prosecution Standards compelling and therefore adopt it. The Standard states: It is unprofessional conduct for the prosecutor intentionally to refer to or argue" }, { "docid": "6417521", "title": "", "text": "128 F.3d 1085, 1096 (7th Cir.1997) (finding Doyle error harmless under Brecht upon consideration of similar factors, where the evidence of defendant’s guilt was overwhelming, defendant’s credibility had already been substantially undermined by physical evidence showing his alibi to be false, and the improper references were limited in intensity and frequency). Although the harmless error standard has changed, our cases applying the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) — whether the error was harmless beyond a reasonable doubt — nevertheless inform and assist us in our analysis under Brecht. Turning to those cases, we first observe that we have repeatedly held Doyle error harmless where the violation consisted of only a single reference to the defendant’s post-Miranda silence during the course of a trial at which the government’s evidence was otherwise overwhelming. See United States v. Gabay, 923 F.2d 1536, 1541 (11th Cir. 1991); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985); Sullivan v. Alabama, 666 F.2d 478, 485 (11th Cir.1982). In so holding, we have often emphasized both that the improper reference was “isolated” or “unintentional” or promptly addressed by a curative instruction from the trial court, and that the prosecutor made no effort to further “highlight” the defendant’s exercise of Miranda rights either in questioning other witnesses or during closing argument. See United States v. Gonzalez, 921 F.2d 1530, 1549-50 (11th Cir.1991) (finding the prosecutor’s single reference to defendant’s post-Miranda silence harmless where “[t]he prosecutor did not return to this testimony either while questioning other witnesses or upon closing argument,” the state’s evidence was “otherwise strong to clearly indicate [the defendant’s] involvement,” and the improper comment “was quickly objected to and a curative instruction was promptly given to the jury”); United States v. Smith, 635 F.2d 411, 413-14 (5th Cir. Unit B 1981) (finding a single comment on defendant’s silence harmless where the prosecutor “did not ‘focus on’ or ‘highlight’ the defendant’s silence in his examination of the witnesses or in his closing remarks,” the court immediately gave a curative instruction, and the evidence of guilt" }, { "docid": "976893", "title": "", "text": "made immediately: “Finally, where as here the comments are at most ambiguous, an instruction to the jury will suffice to avoid possible prejudice. It is appropriate, therefore,, to require counsel to make an immediate objection and request curative instructions. Since counsel did not do this but merely moved for a mistrial at the conclusion of the summations, appellant is precluded from raising the issue now. [Citing cases.]” In the case at bar, the defense did not even do what had been done in Nas-ta, namely, to call for a mistrial at the conclusion of the summation. A motion was made after the verdict to set it aside because of “certain errors” committed, but no specific reference was made to the passage here in question. The judge did give careful instructions to the jury on the issue of self-incrimination, which instructions must be viewed as having cured any misunderstanding held by jury members who may have interpreted the remark in question as a comment on the failure to take the stand. Finally, even if appellant’s characterization of the prosecutor’s remark were to be accepted, that comment would be harmless error in the context of the entire record. The evidence against appellant was so overwhelming that the error, if it were error, would be “harmless beyond a reasonable doubt.” United States v. Nasta, 398 F.2d at 285, citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (decided June 2, 1969). Affirmed. . The portion of the prosecutor’s summation focused upon in this appeal becomes all the more oblique when viewed in context as a comparatively insignificant and unemphasized passage in the lengthy summation." } ]

[ { "docid": "22717085", "title": "", "text": "not properly issued. Abdille sought asylum and withholding of removal relief both from Somalia and from South Africa. The IJ denied Abdille’s asylum request with respect to Somalia, on the ground that he had firmly resettled in South Africa, and denied his asylum request with respect to South Africa, on the ground that he had failed to demonstrate persecution or a well-founded fear of persecution. Abdille appealed, but the BIA similarly denied his requests for asylum from both Somalia and South Africa, for the reasons relied upon by the IJ. Abdille now brings a Petition for Review contesting the BIA’s decision. Because Abdille’s removal proceedings were commenced after April 1, 1997, we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). II. General Asylum Standards The federal asylum statute confers discretion on the Attorney General to grant asylum to an alien applicant “if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158(b)(1). Section 1101(a)(42)(A) defines “refugee” as any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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). The asylum applicant bears the burden of establishing that he or she falls within this statutory definition of “refugee.” See 8 C.F.R. § 208.13(a) (2000); see also Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998). Section 1158(b)(2) lists several exceptions proscribing the Attorney General from exercising his discretion to grant asylum, including the exception pertinent to this appeal, added to the federal asylum statute by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA): Section 1158(b)(2)(A)(vi) bars the grant of asylum to an alien “firmly resettled in another country prior to arriving in the" } ]

[ { "docid": "6677522", "title": "", "text": "Immigration and Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1)(A). This requires a showing that he has suffered past persecution because of “race, religion, nationality, membership in a particular social group, or public opinion,” or that he has a well-founded fear of future persecution on these grounds. 8 U.S.C. § 1101(a)(42). Congress amended the definition of “refugee” in 1996 to include the following provision: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42)(B). A party seeking asylum bears the burden of proving that he satisfies the definition of “refugee.” 8 U.S.C. § 1158(b)(1)(B)(1). He may do this by demonstrating a well-founded fear of persecution on the basis of a privileged ground. See 8 U.S.C. § 1101(a)(42). To establish a well-founded fear of future persecution, an asylum-seeker must show that he has a subjective fear and that his fear is objectively reasonable. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). The “[djetermination of an objectively reasonable possibility [of persecution] requires ascertaining whether a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question.” Id. III. Before considering the details of Chen’s asylum claim, we note that we are unable to review the IJ’s denial of Gao’s application for asylum. We lack jurisdiction to review a discretionary refusal to allow an asylum-seeker the benefit of the “changed circumstances” exception to the one-year timeliness requirement. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006). In this case, Petitioners argue that the BIA “did not fulfill its obligation to" }, { "docid": "12165548", "title": "", "text": "changed in Mauritania so significantly that even if Mr. Ba had demonstrated past persecution, he would not be eligible for asylum because he had no well-founded fear of future persecution. Finally, the evidence showed that Mr. Ba had been firmly resettled in Senegal. Mr. Ba appealed to the BIA. In a reasoned decision authored by one Board member, see 8 C.F.R. § 1003.1(e)(5), the BIA agreed with the IJ that “even if [Mr. Ba] was credible and established past persecution entitling him to the presumption of a well-founded fear of future persecution, his well-founded fear of future persecution has been rebutted by changed country conditions in Mauritania.” Admin. R. at 2. In light of this disposition, the BIA did not find it necessary to consider the other reasons for denying relief on which the IJ relied. ANALYSIS 1.Asylum Standard To obtain asylum, an alien must prove, first, that he is a refugee as defined in 8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to exercise his discretion and grant relief under 8 U.S.C. § 1158(b). See Yuk v. Ashcroft, 355 F.3d 1222, 1232-33 (10th Cir.2004). The asylum statute defines a “refugee” as any person outside his country of nationality “who is unable or unwilling to return to, and is unable or unwilling to avail himself ... of the protection of, that 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.” § 1101(a)(42)(A). The BIA denied relief at the first stage, finding that Mr. Ba was not a refugee. It therefore did not reach the second, discretionary stage of the analysis. 2. Past Persecution and Well-Founded Fear of Future Persecution In its decision, the BIA assumed that Mr. Ba’s testimony demonstrated that he had suffered past persecution. Although regulations of the Department of Homeland Security (DHS) provide that “[a]n applicant who has been found to have established ... past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim,” they also provide that “[tjhat" }, { "docid": "22154071", "title": "", "text": "the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of [8 U.S.C. § 1101(a)(42)(A) ]. .A \"refugee” is defined, in relevant part, as any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... 8 U.S.C. § 1101 (a)(42)(A). . Where, as here, the BIA summarily affirms an IJ’s opinion pursuant to the BIA's “streamlining regulations,” see 8 C.F.R. § 1003.1(e), we review on appeal the decision of the IJ as the final agency determination. See, e.g., Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). . The INS has since been replaced in 2003 as this country’s immigration agency by the Immigration and Customs Enforcement division of the Department of Homeland Security. See. Karageorgious v. Ashcroft, 374 F.3d 152, 154 n. 3 (2d Cir.2004). . Our dissenting colleague also criticizes the IJ's characterization of the Embassy Report as a \"forensic report.” Dissent, post, at 163. We agree that the record does not illuminate whether the Embassy Report is truly the product of scientific analysis but believe that issue not to be of consequence inasmuch as the Embassy Report was surely worthy of the IJ's attention. See Black’s Law Dictionary 676 (8th ed.2004) (defining \"forensic” as ”[u]sed in or suitable to courts of law or public debate”). .Contrary to petitioner’s contention that this letter served to authenticate petitioner's birth certificate, see Br. of Pet’r, at 28-29, such a letter does not" }, { "docid": "22220388", "title": "", "text": "agency decision; however, to the extent that the BIA adopted the findings or the reasoning of the IJ, we also review the IJ’s decision as part of the final agency action. Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.2005). “A denial of asylum is reviewed for abuse of discretion; underlying factual findings are reviewed for substantial support in the record.” Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir.2007). We must uphold an IJ’s factual determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id. We review the BIA’s legal determinations de novo, according substantial deference to the BIA’s interpretation of the statutes and regulations it administers. Id. “Any alien who is physically present in the United States or who arrives in the United States ... irrespective of such alien’s status, may apply for asylum....” 8 U.S.C. § 1158(a)(1). To qualify for asylum, the burden is on the applicant to establish that he or she is a refugee as defined in the statute. 8 C.F.R. § 1208.13(a). Pursuant to section 101(a)(42) of the INA, a refugee is “any person who is outside any country of such person’s nationality ... who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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) (emphasis added). An applicant for asylum may prove eligibility by establishing past persecution on account of one of the statutorily enumerated grounds, and if the applicant shows past persecution, he or she will be presumed to have a well-founded fear of future persecution. Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir.2004). But if an applicant attempts to establish a well-founded fear of future persecution without having shown past persecution then “an alien must show the fear is both subjectively genuine and objectively reasonable .... To overcome the BIA’s finding that [petitioner] lacked a well-founded fear of" }, { "docid": "22395734", "title": "", "text": "otherwise. See id. Nonetheless, the BIA must substantiate its decisions. We will not accord the BIA deference where its “findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003). III. Discussion To obtain a grant of asylum, an alien must demonstrate that he is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). To succeed, an alien must show that he is a person who is unwilling or unable to return to his home country because of “[past] persecution or 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). Thus, an alien may demonstrate either that he qualifies for asylum because of past persecution or because he fears future persecution if returned to his native country. However, the persecution, either past or future, must be motivated by one of the statutorily protected grounds. 8 U.S.C. § 1101(a)(42)(A). Included within these grounds, and relevant to this case, is persecution on account of imputed political opinion. We will grant asylum to an otherwise qualified alien where the motives and perspective of the persecutor demonstrate that the persecution was on account of a belief attributed to the alien, even where the alien did not overtly subscribe to that belief. See Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir.1988). Testimony of an alien, where credible, may be sufficient to support a claim for asylum under either category. Gao, 299 F.3d at 271. A. De novo review and first instance factfinding As an initial matter, Chavarria argues that the BIA engaged in improper faet-finding under 8 C.F.R. § 1003.1(d)(3), a regulation governing BIA standards of review. We disagree. This regulation, enacted in 2002, changed the standard of review the BIA exercises over an IJ’s findings of fact from de novo review to clearly erroneous review. 8 C.F.R. § 1003.1(d)(3)(i). 8 C.F.R. § 1003.3(f) states that “[a]ll cases and motions pending on September 25, 2002, shall be adjudicated according to the rules in" }, { "docid": "22755844", "title": "", "text": "329 F.3d 157, 167 (3d Cir.2003). Moreover, “‘persecution’ and ‘well-founded fear of persecution’ are ... findings of fact that. we review under the deferential substantial evidence standard,” and thus the BIA’s findings must be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Therefore, we must uphold the BIA’s factual findings if they are “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). III. DISCUSSION Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to an alien who is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). Generally speaking, an applicant must show that he or she: is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of [the country of such person’s nationality or in which such a person last habitually resided] 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). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). While asylum constitutes discretionary relief, an applicant is entitled to withholding of removal if he or she can satisfy the higher burden of demonstrating that it is more likely than not that life or freedom would be threatened because of a protected ground if he or she were removed. 8 U.S.C. § 1231(b)(3)(A) (1999); Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). Especially relevant here is the fact that the IIRIRA amended § 1101(a)(42) by specifying that: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and" }, { "docid": "7674215", "title": "", "text": "13, 2002. It stated that it had considered Mekhoukh’s new evidence prior to affirming the immi gration judge’s decision. It further noted that to the extent Mekhoukh was objecting to the fact that it affirmed without opinion, such motions were barred by regulation. See 8 C.F.R. § 1003.2(b)(3). Mekhoukh petitions for review of the denial of his application for asylum, for ■withholding of deportation, and for protection under the Convention Against Torture. II. DISCUSSION We have jurisdiction over Mekhoukh’s appeal pursuant to 8 U.S.C. § 1252(b)(4). A. Standard of Review Our review of an order of removal is circumscribed by statute. A court of appeals must decide a petition for review “only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). “[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” id. at 1252(b)(4)(B) (emphasis added), and “a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law,” id. at 1252(b)(4)(C). B. Asylum In order to be eligible for asylum, an alien must be a “refugee within the meaning of section 1101(a)(42)(A) of [Title 8 of the United States Code].” 8 U.S.C. § 1158(b)(1). A “refugee” is defined, in relevant part, as any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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); see also Albathani v. INS, 318 F.3d 365, 373 (1st Cir.2003). An asylum applicant bears the burden of establishing that he or she falls within the statutory definition of “refugee.” See 8 C.F.R. § 208.13(a); see also Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.2003). Mekhoukh does not claim that he has suffered any persecution in the past, but that he has a “well-founded fear of" }, { "docid": "16272656", "title": "", "text": "“failed to establish that she has suffered past persecution on account of a protected ground, or that she has a well-founded fear of persecution if returned to China to include as a result of their coercive population control policies because she has two United States citizen children.” II We review the BIA’s decision as the final decision of the agency. “To the extent ... the BIA adopted the findings or the reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Falaja v. Gonzales, 406 F.3d 1076, 1081 (8th Cir.2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005)). We review the BIA’s determination that Zheng failed to establish she is eligible for asylum under a substantial evidence standard. Lau May Sui v. Ashcroft, 395 F.3d 863, 869 (8th Cir.2005) (citing S-Cheng v. Ashcroft, 380 F.3d 320, 322-23 (8th Cir.2004)). Under the substantial evidence standard, we will not overturn the BIA’s decision unless we find, based on the evidence, “no reasonable fact-finder could arrive at the conclusion reached by the BIA.” Id. (quoting S-Cheng, 380 F.3d at 323). The Immigration and Nationality Act provides the Attorney General the discretion to grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b). A “refugee” is an alien unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). Congress has expanded the definition of “refugee” to include “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program.” Id. § 1101(a)(42)(B). Such individuals “shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to" }, { "docid": "23347090", "title": "", "text": "O’Leary, 895 F.2d 378, 384 (7th Cir.1990)).) The IJ determined that Lin’s testimony was not believable and that she could not meet her burden of proof “without necessary corroboration of the incidents in the past.” Specifically, the IJ gave two reasons for disbelieving Lin’s story. First, he concluded that Lin’s “sole motivation for coming to the United States was economic,” rather than fear of China’s coercive population control policies. In the IJ’s estimation, the fact that Lin sent her second child back to China “undercut” her testimony that she was concerned about the conse quences of having an unauthorized child. Second, the IJ decided that Lin’s descriptions of her two forced abortions were implausible and were inconsistent with “general background reports.” The IJ found it hard to believe that eight or ten people arrived to escort Lin to the hospital for her abortions. After making this credibility determination, the IJ further found that Lin had not sufficiently corroborated her alleged persecution through third-party affidavits. The IJ thought that Lin should have been able to produce this corroboration because she has remained in contact with her family in China. II A When the BIA affirms an IJ’s ruling without opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision directly. Vladimirova v. Ashcroft, 377 F.3d 690, 2003 WL 23676865, *5 (7th Cir. July 26, 2004). To qualify for asylum, Lin bears the burden of proving that she meets the statutory definition of “refugee” as provided in the Immigration and Nationality Act (INA). This definition generally provides that a refugee is “any person who is outside any country of such person’s nationality ... who is unable or unwilling to return to ... that 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.” See 8 U.S.C. § 1101(a)(42)(A). This generally applicable definition has been amended to specifically account for applicants like Lin who allege persecution based on coercive family planning policies. See 8 U.S.C. § 1101(a)(42)(B). Withholding of removal is governed by a more stringent standard" }, { "docid": "23078736", "title": "", "text": "IJ further found that this was not a case of “police neglect,” and that nothing in the record suggested that the government ignored Menjivar’s complaints. Based on these observations, the IJ concluded that Menji-var’s situation was not covered by the asylum provisions of the Immigration and Nationality Act (“INA”) or by the Convention Against Torture. The BIA affirmed the IJ’s decision without opinion. II. Under the INA, the Attorney General may grant asylum to any alien who demonstrates that he is a “refugee” as defined by 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). A “refugee” is a person who “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of’ his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Although Congress deleted the former “substantial evidence” standard of review from the applicable statute in 1996, we continue to review the administrative findings of fact to determine whether they are supported by sub stantial evidence on the record as a whole. Menendez-Donis v. Ashcroft, 360 F.3d 915, 917-18 (8th Cir.2004); see also Dia v. Ashcroft, 353 F.3d 228, 248 & n. 18 (3d Cir.2003) (en banc). This means that findings of fact made by an IJ or the BIA are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Menendez-Donis, 360 F.3d at 917-18; see INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The Attorney General’s discretionary decision whether to grant asylum “shall be conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). Menjivar’s principal argument on appeal is that the IJ erred in determining that she is not a member of a protected social group. We find it unnecessary to reach this question, because we believe the IJ reasonably concluded that Menjivar failed to establish “persecution” within the meaning of the INA. The BIA has adopted," }, { "docid": "10321122", "title": "", "text": "of the Convention Against Torture and withholding of removal, which the IJ denied. The BIA affirmed the IJ without opinion. II. DISCUSSION Because the BIA affirmed the IJ without opinion, the IJ’s decision is a final agency action for purposes of judicial review. Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir.2003) (citing 8 C.F.R. § 3.1(a)(7)(iii)). “When a timely application for asylum has been denied, we will affirm the BIA’s decision if it is supported by substantial evidence on the agency record considered as a whole.” Raffington v. INS, 340 F.3d 720, 723 (8th Cir.2003). “To overturn a finding that [he] is not eligible for asylum, [Wondmneh] must meet the heavy burden of demonstrating that the evidence was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution.” Id. Subject to certain exceptions, the Attorney General may grant asylum to an alien who proves he is a “refugee.” Melecio-Saquil, 337 F.3d at 986 (citing 8 U.S.C. § 1158(b)(1)). A “refugee” is defined as “any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to ... that 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). “A well-founded fear of persecution is both subjectively genuine and objectively reasonable.” Loulou v. Ashcroft, 354 F.3d 706, 709 (8th Cir.2003). “To show fear of persecution is objectively reasonable, an alien must present ‘credible, direct, and specific evidence of facts that show a reasonable person in the alien’s position would fear persecution if returned to the alien’s native country.’ ” Id. (quoting Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993)). In denying Wondmneh’s application for asylum, the IJ ruled Wondmneh failed to show he had a well-founded fear of persecution. The IJ found Wondmneh was a credible witness and believed Wondmneh’s testimony. However, the IJ noted Wond-mneh had not been persecuted in the past by any Ethiopian government. The IJ ruled Wondmneh had not shown a" }, { "docid": "22671350", "title": "", "text": "IJ’s decision without opinion. II. STANDARD OF REVIEW When the BIA summarily affirms the IJ’s decision without an opinion, the IJ’s decision becomes the final removal order subject to review. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1284 n. 1 (11th Cir.2003). The IJ’s findings of fact are reviewed under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001) (quotation marks and citation omitted). Under this highly deferential standard of review, the IJ’s decision can be reversed only if the evidence “compels” a reasonable fact finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992); Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc). III. DISCUSSION A. Asylum An alien who arrives in or is present in the United States may apply for asylum, which the Attorney General has discretion to grant if the alien meets the INA’s definition of a “refúgee.” 8 U.S.C. § 1158(a)(1), (b)(1). A “refugee” is defined as: any person who is outside any country of such person’s nationality or, in the case of a person haying no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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) (emphasis added). The asylum applicant carries the burden of proving statutory “refugee” status and thereby establishing asylum eligibility. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility based on political opinion or any other protected ground, the alien must, with credible evidence, establish (1) past perse cution on account of her political opinion or any other protected ground, or (2) a “well-founded fear” that her political" }, { "docid": "7674216", "title": "", "text": "at 1252(b)(4)(C). B. Asylum In order to be eligible for asylum, an alien must be a “refugee within the meaning of section 1101(a)(42)(A) of [Title 8 of the United States Code].” 8 U.S.C. § 1158(b)(1). A “refugee” is defined, in relevant part, as any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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); see also Albathani v. INS, 318 F.3d 365, 373 (1st Cir.2003). An asylum applicant bears the burden of establishing that he or she falls within the statutory definition of “refugee.” See 8 C.F.R. § 208.13(a); see also Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.2003). Mekhoukh does not claim that he has suffered any persecution in the past, but that he has a “well-founded fear of persecution” if he returns to Algeria. An applicant has a “well-founded fear of persecution” if “(A) [t]he applicant has a fear of persecution in his or her country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion; (B) [t]here is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (C) [h]e or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. § 208.13(b)(2)(i). Thus, a well-founded fear of persecution has both subjective and objective components: (1) subjectively, the asylum-seeker must show a genuine fear of persecution, and (2) objectively, the record must show “by credible, direct, and specific evidence, ... facts that would support a reasonable fear that thp petitioner faces persecution.” See Guzman v. INS, 327 F.3d 11, 16 (1st Cir.2003) (quoting Ravindran v. INS, 976 F.2d 754, 758 (1st Cir.1992) (quoting Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st" }, { "docid": "22175176", "title": "", "text": "denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons’ request for voluntary departure in lieu of removal, designating Somalia as the country of removal. On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review. II. Standard of Review We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the \"Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum.\" Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As the BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(a), we review the IJ's decision as the final agency determination. Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir.2004). \"We accept the Petitioner['s] testimony as true when, as here, the IJ found [her] to be credible.\" Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). III. Discussion A. The Asylum Claim To establish eligibility for asylum, the applicant must first show that she qualifies as a refugee. Immigration and Nationality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the Attorney General discretion to grant asylum to any alien deemed a “refugee”). A refugee is one “who is unable or unwilling to return to ... [her native] 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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Ali has met the statutory eligibility for asylum. 1. Ali Suffered Past Persecution on Account of Political Opinion and Membership in a Particular Social Group Although the USC militia was not the ruling" }, { "docid": "22611229", "title": "", "text": "BIA defers to an IJ, a reviewing court must, as a matter of logic, review the IJ’s decision to assess whether the BIA’s decision to defer was appropriate.”). Where the BIA substantially relies on an IJ’s adverse credibility determination, we must look to both decisions in order to satisfy our obligation under 8 U.S.C. § 1252(b) to review the administrative decision meaningfully. Xie, 359 F.3d at 242; see also Dia, 353 F.3d at 243. The BIA’s decision in this case makes clear that it was relying upon the adverse credibility finding made by the IJ. While the BIA identified some of the inconsistencies the IJ cited, it did so by way of example and did not conduct a de novo review of the record to arrive independently at its conclusions. Inasmuch as the BIA deferred to the IJ’s credibility determinations and adopted the reasons the IJ set forth, we have authority to review both determinations. IV. DISCUSSION The framework in which we review the administrative determinations is well established. Section 208(a) of the INA, 8 U.S.C. § 1158(b), gives the Attorney General discretion to grant asylum to any alien who demonstrates that he or she is a “refugee” within the meaning of section 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A). Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815. To qualify as a “refugee,” one must demonstrate that he or she is “unable or unwilling to return to ... that 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)(A). The definition of “refugee” includes “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization” under the ambit of persecution “on account of political opinion.” Id. § 1101(a)(42)(B). The BIA has extended this protection to include the spouse of an individual who has been sterilized or otherwise subject to a coercive population control program as defined by 8 U.S.C. § 1101(a)(42)(B) and we decide this appeal assuming the validity of that conclusion. In" }, { "docid": "12287045", "title": "", "text": "“no reason to believe that the government of Guatemala at this time would have any interest in a respondent who was approximately seven years of age when he left Guatemala in 1982.” The IJ granted Camposeco voluntary departure. The BIA affirmed without opinion pursuant to 8 C.F.R. § 3.1(e)(4) (now found at 8 C.F.R. § 1003.1(e)(4)). Camposeco filed a timely petition for review. STANDARD OF REVIEW Where the BIA adopts the decision of the IJ as the final agency determination of the case, we review the decision of the IJ. Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251(9th Cir.2004); see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003). The denial of asylum is reviewed for substantial evidence. Kataria v. INS, 232 F.3d 1107, 1112(9th Cir.2000). The denial must be upheld unless the applicant can show that “the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacanas, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). DISCUSSION Camposeco challenges the IJ’s denial of his application for asylum. He applied for asylum pursuant to Immigration and Nationality Act (“INA”) § 208(b)(1), 8 U.S.C. § 1158(b)(1), which gives the Attorney General discretion to grant asylum to an alien who is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). A refugee includes a person who is unable or unwilling to return to his native 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). Camposeco also challenges the denial of withholding of removal. Under INA § 241(b)(3), “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). “Unlike asylum, withholding of removal is not discretionary.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001) (citation" }, { "docid": "23049945", "title": "", "text": "fear of future persecution. She thus denied the petitioner’s applications for asylum and withholding of deportation. Noting that the Syrian authorities had never laid a finger on the petitioner, the IJ also ruled that the petitioner had wholly failed to show that he would face likely torture if removed to Lebanon. Consequently, the IJ rejected the petitioner’s CAT claim as well and ordered him removed to Lebanon. The petitioner appealed. The BIA summarily affirmed the IJ’s decision on February 6, 2004. This petition for judicial review followed. II. Discussion In order to become eligible for asylum, an alien must establish that he is a refugee. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a); see also Laurent v. Ashcroft, 359 F.3d 59, 63 (1st Cir.2004). A refugee is a person unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Laurent, 359 F.3d at 63-64. A showing of past persecution creates a presumption that an applicant’s fear of future persecution is well-founded. See 8 C.F.R. § 208.13(b)(1); see also Fergiste v. INS, 138 F.3d 14, 18 (1st Cir.1998). In the absence of a showing of past persecution, the asylum applicant bears the burden of demonstrating that his fear of future persecution is well-founded. See Laurent, 359 F.3d at 65. When an IJ rejects an alien’s application for asylum and orders his removal, the BIA has jurisdiction to review the order upon the filing of a timely appeal. See 8 C.F.R. §§ 1003.1(b), 1240.15; see also Nugent v. Ashcroft, 367 F.3d 162, 165 (3d Cir.2004). “Where, as here, the BIA conducts a de novo review of the record, independently validates the sufficiency of the evidence, and adopts the IJ’s findings and conclusions, the IJ’s findings become the BIA’s.” Laurent, 359 F.3d at 64 n. 3. We review the BIA’s order pursuant to the authority conferred by 8 U.S.C. § 1252(b). Our review is deferential. In immigration cases, the court of appeals applies the" }, { "docid": "22339797", "title": "", "text": "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. INS, 281 F.3d 1069, 1073 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002)). III. Congress vested the Attorney General with the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A). The INA defines “refugee,” in relevant part, as: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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). While asylum is a discretionary form of relief, the Attorney General must grant withholding of removal if “the alien’s life or freedom would be threatened” in the country to which he would be removed because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). Thus, to be eligible for either form of relief, the persecution feared must be on account" }, { "docid": "22444695", "title": "", "text": "must demonstrate that she meets the statutory definition of “refugee” under the INA. A refugee is “[a]ny person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to ... that 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). The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a “clear probability” that, upon removal to the country of origin, his or her “life or freedom would be threatened on account of one of the statutorily enumerated factors.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998). An applicant who does not qualify for asylum necessarily does not qualify for withholding of removal. Guo v. Ashcroft, 386 F.3d 556, 561 n. 4 (3d Cir.2004). To qualify for relief under the CAT, an applicant for relief bears the burden of proving through objective evidence that “it is more likely than not” that s/he would be “tortured” in the country to which the applicant would be removed. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004); 8 C.F.R. § 1208.16(c)(2). Where, as here, the BIA affirms the IJ’s decision without opinion, “we review the IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). Review of an IJ’s decision is conducted under the substantial evidence standard, which requires that administrative findings of fact be upheld “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “ ‘[D]eference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record as a whole.’ ” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998) (quoting Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.1994)). A. In her asylum application, Obale stated that she feared persecution by the Came roonian" }, { "docid": "22155093", "title": "", "text": "all because the respondent failed to appear in court and the police were executing a warrant. ...” Id. The IJ also referenced the “1997 State Department Profile” for the proposition that “country conditions for people who are in the Jatiya Party have radically changed.” Id. at 95. On March 21, 2003, the Board of Immigration Appeals (BIA), exercising jurisdiction under 8 C.F.R. § 1003.1(b), affirmed the IJ’s decision. The BIA explained that Shardar had failed to meet the burden of proof for establishing asylum because [w]hile ... violence is a feature of the political process in Bangladesh, we have no reason to conclude that the prosecution the respondent may face if he returns to Bangladesh is politically motivated, and there is no reason to find that he would be unable to establish his claimed innocence. Id. at 2. Moreover, the BIA denied Shardar’s request to reopen the proceeding for consideration under the CAT, concluding that he had “failed to establish prima facie eligibility for relief under the Convention.” Id. However, the BIA agreed that Shardar should be entitled to voluntarily depart. Id. at 3. This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We conclude that the BIA properly denied (1) the petition for asylum; and (2) the petition to remand the proceedings for consideration under the CAT. II. Shardar argues that the BIA erred in denying his application for political asylum, particularly since the IJ found his testimony credible. The Attorney General has discretion to grant asylum if the petitioner demonstrates that he meets the Immigration and Nationality Act’s (INA) definition of “refugee” — that he is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a par ticular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Dia v. Ashcroft, 353 F.3d 228, 234 n. 1 (3d Cir.2003). “A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003) (citing 8 C.F.R. §" } ]

[ { "docid": "21612179", "title": "", "text": "FIB account that is directly challenged by the bankruptcy trustee as an avoidable preference under 11 U.S.C. § 547. STANDARD OF REVIEW In reviewing a district court’s affirmance of a bankruptcy court decision, this court’s role is essentially the same as the district court’s; findings of fact are reviewed under the “clearly erroneous” standard, and conclusions of law are reviewed de novo. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). DISCUSSION A bankruptcy trustee may avoid a transfer of property of the debtor if it was: (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt; (3) made while the debtor was .insolvent; (4) made on or within ninety days before the date of the filing of the petition; and it (5) enables such creditor to receive more than it would receive if the transfer had not been made and the debtor’s estate was liquidated according to the provisions of the Bankruptcy Code. 11 U.S.C. § 547(b) (1982); Danning v. Bozek (In re Bullion Reserve of North America), 836 F.2d 1214, 1217 (9th Cir.1988), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988). In order to avoid a transfer as a preference under section 547, the trustee must also establish that the property involved was property of the debtor such that the transfer diminishes the fund from which bankruptcy creditors may be paid. Sierra Steel v. S. & S. Steel Fabrication (In re Sierra Steel, Inc.), 96 B.R. 271, 273 (Bankr. 9th Cir.1989); Shaw Industries v. Gill (In re Flooring Concepts, Inc.), 37 B.R. 957, 961 (Bankr. 9th Cir.1984). The government maintains that the challenged transfer involved federal funds held in trust by CTTS, and that, therefore, the bankruptcy court erred in finding that the funds transferred were property of CTTS. Bankruptcy law does not view property held in trust by the debtor as property of the estate available for general creditors. Generally, property is only considered property of the debtor for purposes of section 547 if its transfer would deprive the estate of something which could be" } ]

[ { "docid": "11766210", "title": "", "text": "Ninth Circuit Court of Appeals decision in Mitsui Manuf. Bank v. Unicom Computer Corp. (In re Unicom Computer Corp.), 13 F.3d 321 (9th Cir.1994). In Unicom, the Court of Appeals dealt with an action to recover an avoidable preference under section 547. The debtor had wrongfully obtained a cheek that should have been paid to a creditor. Subsequently, the debtor paid the creditor the amount the debtor had wrongfully received, and then filed its petition in bankruptcy. The Court of Appeals held that the trustee for the debtor could not recover the transfer as a preference, because the funds were held subject to a constructive trust on the creditor’s behalf and thus were not property of the debtor as is required by section 547(b). The court’s reasoning was as follows: (1) “property of the debtor” means property that would have been property of the estate under section 541 but for the transfer, 13 F.3d at 324; and (2) property held in constructive trust is not property of the estate, and therefore is not property of the debtor, 13 F.3d at 324-25. The trustee objected, presenting a number of arguments in response to Taylor’s motion. The trustee contended Taylor could not trace the funds allegedly held by Advent in con- ' structive trust, and therefore that Taylor was not entitled to argue that a constructive trust exists. The trustee also argued that the evidence showed that Advent was rightfully entitled to some of the monies received from Coastal, and therefore Taylor could not avoid the tracing requirement. The bankruptcy court denied Taylor’s second motion to reconsider. At oral argument, the court held that Unicom’s holding was limited to the circumstance where the recipient of the transfer was also the beneficiary of the constructive trust. Because Taylor was not the beneficiary of the constructive trust, the court concluded Taylor could not interpose Coastal’s alleged constructive trust as a defense. The court noted that there was no evidence Coastal ever tried to establish a constructive trust against the funds. Additionally, the court held Taylor failed to trace the funds Taylor received to funds" }, { "docid": "22297776", "title": "", "text": "provisional credit, converting that credit into a loan. At the moment that the Debtor’s payment to Baker & Schultz was achieved (that is, when the Bank honored check number 1141), the provisional credit ripened into an interest in property of the Debtor. The transfer in this case should be considered in light of the purposes of the statutory avoidance power under section 547. Two purposes animate that provision. First, the avoidance power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. H.R.Rep. No. 595, 95th Cong., 2d Sess. 177-78 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6137-39. Second, by providing for the recapture of last-minute payments • to creditors, the avoidance power reduces the incentive to rush to dismember a financially unstable debtor. Id.; Covey v. Commercial Nat’l Bank of Peoria, 960 F.2d 657, 661-62 (7th Cir.1992). See generally In re Barefoot, 952 F.2d 795, 797-98 (4th Cir.1991). Both purposes support the Trustee’s recovery of the Debtor’s payment to Baker & Schultz. First, the payment represents a decidedly unequal distribution among creditors. Instead of writing a single check to Baker & Schultz for 100 percent of the amount owed to it, the Debtor could have written several checks (which presumably would also have been honored) paying off each of his creditors on a pro rata basis. Despite its having been paid off completely within the 90-day preference-recovery period, Baker & Schultz attempts to retain its payment on the basis of the fortuity (from its perspective) that the Bank had extended credit where no credit was due. Such a fortuity should not block recovery as far as the equal-distribution rationale is concerned. Baker & Schultz received a full payment on its debt, while other creditors did not; that places the payment within the scope of the avoidance power’s first purpose. Second, allowing the recapture of payments structured like the one before us would further the goal of preventing competition to dismember the debtor. Hungry creditors can exert pressure on" }, { "docid": "7255876", "title": "", "text": "notions of \"properly of the estate,” \"diminution of the estate,” \"an interest of the debtor in property,” and the debtor's \"dominion and control.” The In re Safe-T-Brake of South Florida, Inc. court states the relationship thus: Absent dispositive control, the Debtor never had an interest in the funds transferred to [the old creditor]. Absent an interest in the funds, the property was never part of the Debtor’s estate. Absent any loss of property of the Debtor’s estate, other creditors were not harmed, and there was no preference under section 547(b). In re Safe-T-Brake of South Florida, Inc., 162 B.R. at 367. See also id. at 366 n. 3 (\"[T]he legal theories of 'earmarking’ and 'no diminution of the estate’ have essentially the same meaning.”). The Ninth Circuit, in reaching a result consistent with today’s holding, observed cryptically that the \" 'diminution of estate’ doctrine has been developed to test whether a debtor controlled transferred property to the extent that he owned it.” In re Kemp Pacific Fisheries, Inc., 16 F.3d at 316 (debtor's payment of antecedent debt was a preferential transfer, notwithstanding the fact that payment was made by a check (honored by the drawee) drawn against an overdrawn account; instance in which the debtor controlled who was paid, even though it did not control, or even have an enforceable right to, the funds disbursed). . Overlooking the pool of similarly situated unsecured creditors in the Adams bankruptcy, AT & T states in its brief that the court ought to consider the practice of \"experienced [credit card] creditors,” like AT & T and MBNA, of taking a \"calculated risk in extending credit to a debtor on the brink of bankruptcy.” It describes the new creditor’s loss and the old creditor’s gain as the “normal and equitable result between two experienced creditors].” The argument takes the notion of \"intent of the parties” to places it simply does not belong. Preference defendants often argue that the intent of the debtor and the new creditor to substitute the new creditor for the old should control the earmarking determination, even if the intent wasn’t" }, { "docid": "7599945", "title": "", "text": "to inequality among similarly situated creditors, and allow for both strategic behavior and collusion by creditors to secure preferential treatment prior to a debtor filing its petition. This approach would “leave to the creditor the discretion to determine the date the obligation was incurred, creating the possibility not only of inequality of treatment of similarly-situated creditors (depending on the vagaries of their billing practices), but also the opportunity for a particular creditor, who foresees that his debtor is approaching bankruptcy, to secure preferential treatment for himself by the timing of the bill.” Matter of Emerald Oil Co., 695 F.2d 833, 837 (5th Cir.1983). In this case, the stock transfer resulted in a large diminution of the value of the debtor’s estate, and a serious depletion of assets of the estate available to other creditors. Similarly situated creditors were not treated equally. Moreover, RSW, as the debtor’s counsel, was in a unique position to secure preferential treatment for itself—as it knew the debtor was going to file for bankruptcy in the imminent future. First Jersey’s payment to RSW depleted the estate of its only significant asset that would have been available to its other creditors. This is the type of payment Congress intended the preference section to reach. We have no trouble concluding the stock transfer was a preference under Section 547 of the Bankruptcy Code. As such, RSW had an actual conflict with the debtor and was therefore disqualified from serving as counsel under § 327, unless payment to it was in the ordinary course of business. B. Payment in the Ordinary Course of Business Even if a payment is considered a preference under Section 547(b), it may not be subject to avoidance if it was made in the ordinary course of business, as defined in 11 U.S.C. § 547(c). The purpose of Section 547(c) is to leave undisturbed normal financial relations between a debt- or and its creditors, even as a company approaches bankruptcy. It protects “recurring, customary credit transactions that are incurred and paid in the ordinary course of business of the debtor and the debtor’s transferee.” 5" }, { "docid": "20235665", "title": "", "text": "used to pay creditors as avoidable preferences pursuant to 11 U.S.C. § 547(b). See In re Marshall, 550 F.3d 1251 (10th Cir.2008); In re Wells, 382 B.R. 355 (6th Cir. BAP 2008); Parks v. Boeing Wichita Credit Union (In re Fox), 382 B.R. 800 (Bankr.D.Kan.2008); Mukamal v. Bank of Am. (In re Egidi), 386 B.R. 884 (Bankr.S.D.Fla.2008); Lewis v. Providian Bancorp (In re Getman), 218 B.R. 490 (Bankr.W.D.Mo.1998); Yoppolo v. Greenwood Trust (In re Spitler), 213 B.R. 995 (Bankr.N.D.Ohio 1997). “These courts reason that the debtor, even if never in actual possession of the loaned proceeds, exercises dominion or control over them as evidenced by an ability to direct their distribution.” In re Marshall, 550 F.3d at 1256 (citations omitted). The Fifth Circuit has used a similar standard to determine when property that is transferred is “property of the Debtor.” See In re Southmark Corp., 49 F.3d 1111, 1116 (5th Cir.1995). “If the debtor determines the disposition of funds from the third party and designates the creditor to be paid, the funds are available for payment to creditors in general and the funds are assets of the estate. In this event, because the debtor controlled the funds and could have paid them to anyone, the money is treated as having belonged to her for purposes of preference law whether or not she actually owns it.” Id. at 1116-17 n. 17. Section § 547(b) of the Bankruptcy Code states in relevant part: [T]he trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made on or within 90 days before the date of the filing of the petition; (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent" }, { "docid": "8347924", "title": "", "text": "lien creditors (or perhaps all of the creditors) would share the asset. In either event, the execution of the lien would prevent the debtor from converting his asset into exempt property. In future cases, the astute creditor, anticipating a debtor’s bankruptcy, would attempt to establish a lien on every non-exempt asset — ensuring at least that the assets would be preserved for the creditors. Such a strategy would produce a race to the courthouse (or the altar) between creditors and the debtor during the preference period. This result would be antithetical to the policies of sections 522 and 547. II. Diminution of Estate Doctrine In addition to the requirement that the debtor be able to exempt his transferred property, section 522(h) requires in pertinent part that (1) such transfer be avoidable by the trustee under section ... 547 ... of this title .... Deel’s second argument on appeal is that the trustee could not have avoided the lien under section 547 because of the diminution of estate doctrine. The doctrine prevents a trustee from avoiding a preferential transfer when he cannot bring the asset back into the estate to benefit creditors other than the transferee. See Continental and Commercial Trust and Savings Bank v. Chicago Title and Trust, 229 U.S. 435, 33 S.Ct. 829, 57 L.Ed. 1268 (1913); 4 Collier on Bankruptcy § 547.21 at 547-79 (1983). In this case, Deel claims that no other creditor would benefit from the avoidance of the lien and, therefore, neither a trustee nor Levine can take advantage of section 547. Deel takes particular note of the language in one old case holding that the preference avoidance provisions were not meant for the benefit of the debtor. See In re Coddington, 126 F. 891, 893 (E.D.Wis.1903). We conclude, however, that the availability of assets to satisfy other creditors’ claims is not relevant when a debtor avoids a preference pursuant to sections 522(h) and 547 of the new Code. In reaching this result, we consider the purposes of the diminution of estate doctrine and the differences in policy between the old Act and the new" }, { "docid": "13035130", "title": "", "text": "January 28, 1999, in response to this request, the owner paid Stovall $32,510.00 by check payable jointly to Stovall and GEM. On February 5, 1998, Stovall filed suit against GEM and Markel in the circuit court of the City of Richmond for the outstanding balance on its subcontract. GEM and Markel were served with notice of the suit on February 18, 1998, and February 17, 1998, respectively. On February 18, 1998, the same day that GEM received notice of the lawsuit, GEM delivered a check in the amount of $81,874.00 to Stovall for the full balance due under the subcontract, and Stovall contemporaneously executed a final lien waiver. Stovall also dismissed its case against GEM and Markel. At the time of GEM’s payment to Sto-vall, BTS owed GEM approximately $120,000.00, representing retainage under the general contract, and GEM owed its subcontractors approximately $254,832.08. Additional findings of fact are stated in the conclusions of law section of this opinion. Discussion and Conclusions of Law. Bankruptcy Code § 547(b) permits a trustee to invalidate certain pre-bankruptcy transfers of a debtor, generally referred to as preferences. See 11 U.S.C. § 547(b); see also Advo-System, Inc. v. Maxway Corp., 37 F.3d 1044, 1045 (4th Cir.1994). Property brought back into the estate under this section is shared by debt- or’s unsecured creditors on a pro rata basis. See Gulf Oil Corp. v. Fuel Oil Supply & Terminaling, Inc. (In re Fuel Oil Supply & Terminaling, Inc.), 837 F.2d 224, 227 (5th Cir.1988). Section 547(b) serves two congressional goals: First, the avoidance power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. Second, the avoidance power discourages creditors from attempting to outmaneuver each other in an effort to carve up a financially unstable debtor and offers a concurrent opportunity for the debtor to work out its financial difficulties in an atmosphere conducive to cooperation. Advo-System, Inc., 37 F.3d at 1047. While § 547(b) implements Congress’ twin goals, § 547(c) exempts prefer ential transfers that" }, { "docid": "22297778", "title": "", "text": "desperate debtors to engage in such dealings. Section 547 was designed to take away the incentive for such competitive last-minute asset-grabbing. One final perplexing issue must be addressed. We have concluded that the Debtor’s payment involved “an interest of the debtor - in property.” All of section 547(b)’s formal requirements for an avoidable preference have thus been met by the Trustee. But courts have also long held that to be avoidable, transfers must result in a depletion or diminution of the debtor’s estate. 4 Collier H 547.03, at 547-22.2 (whether debtor’s estate was depleted or diminished by transfer is a “fundamental inquiry”). This requirement is normally considered part of the search for a transfer of the debtor’s interest in property. Notice that the discussion thus far has not specifically involved the notion of the debt- or’s “estate”; instead we have focused on the debtor’s “property.” In fact, section 547 does not contain the word “estate.” What is the distinction between the debt- or’s “estate” and the debtor’s “property”? The debtor’s estate is generally not considered to come into existence until the bankruptcy petition is filed: section 541(a)(1) of the Code defines the debtor’s estate as including “all legal or equitable interests of the debtor in property as of the commencement of the case.” The debtor’s “property,” of course, can exist before the petition is filed. Ordinarily the distinction makes no difference in preference-recovery cases, because any property of the debtor transferred in the preference period is also property that would have been available for bankruptcy distribution at the moment the estate came into existence. Things are different here, however. The money that Baker & Schultz received would never have been available for bankruptcy distribution, Baker & Schultz argues, because the Debtor’s credit was revoked within five days of payment and his property shrank back down to $164 — all before the bankruptcy petition was filed. Nevertheless, the transfer did “cheat” other creditors out of what they might otherwise have received, since the Debtor could have paid all creditors pro rata at the time he chose to pay Baker & Schultz." }, { "docid": "19735932", "title": "", "text": "Indus., Inc., 178 B.R. at 761. But this does not mean that a bankruptcy trustee may not recover a preferential transfer unless the transfer is scheduled for distribution to holders of unsecured claims; to the contrary, “[sjection 550(a) speaks of benefit to the estate&emdash;which in bankruptcy parlance denotes the set of all potentially interested parties&emdash;rather than to any particular class of creditors.” Mellon Bank, N.A. v. Dick Corp., 351 F.3d 290, 293 (7th Cir.2003) (emphasis in original). As the Bankruptcy Appellate Panel for the Ninth Circuit noted in Enserv Co., Inc. v. Manpower, Inc./California Peninsula (In re Enserv Co., Inc.), 64 B.R. 519 (9th Cir. BAP 1986): In the instant case the preference is being recovered for the benefit of the estate even though it is used to pay a secured creditor. There is nothing abusive in this. Section 547 mandates that each creditor must share equally with others of its class.... [A] secured creditor ... is entitled to be paid from the proceeds of its collateral ] ahead of the unsecured creditors, even if these creditors are never paid. The [Bankruptcy] Code sets an elaborate list of priorities for payment from the estate.... Section 547 was designed in part to see that those priorities are not circumvented. Id. at 521-22. In re Enserv involved a chapter 11 debt- or-in-possession rather than a chapter 7 trustee, but the principle applies in both instances. Indeed, the fatal flaw in the reasoning of the courts in Congress Credit and Pearson Industries is that those courts insisted on imposing a separate definition of the term “estate” for purposes of chapter 7 of the Bankruptcy Code than the one used in chapter 11 cases. But “the bankruptcy ‘estate’ is not synonymous with the concept of a pool of assets to be gathered for the sole benefit of unsecured creditors.” Stalnaker II, 376 F.3d at 823. Instead, Congress crafted a single, straightforward provision that allows a trustee to recover preferences any time transferred assets should have been included in the debtor’s estate at the commencement of the case. Congress did not discriminate between encumbered and" }, { "docid": "13035137", "title": "", "text": "954 F.2d 193, 199 (4th Cir.1992). Likewise, the key factor in determining whether a preferential payment is excepted from avoidance as new value under § 547(c)(1) is the effect on the estate of debtor. See In re Powerine Oil Co., 59 F.3d at 973; In re Fuel Oil Supply & Terminaling, Inc., 837 F.2d at 229-30. Where the creditor’s indirect hen is fuhy secured by assets of debtor, the preferential transfer can be protected by the new value exception. For example, in In re Fuel Oil Supply & Terminaling, Inc., the Fifth Circuit held that the trustee could not recover the preferential payment made by debtor to a creditor who held a standby letter of credit issued by a bank on account of debtor because the bank’s reimbursement claim against debtor was fully secured by assets of debtor. See In re Fuel Oil Supply & Terminaling, Inc., 837 F.2d at 229-30. The court reasoned that when debtor paid the creditor, the bank’s exposure under the letters of credit was reduced by a corresponding amount. See id. at 230-31. The bank’s contingent reimbursement claim against debtor’s assets was thereby released, giving debtor new value. See id. at 231. “This outcome is consistent with the principle underlying § 547(c)(1) because the release of the debt- or’s collateral offsets the transfer to the creditor, thereby resulting in no depletion to the debtor’s estate.” Id. at 228. However, where the creditor’s indirect lien is only partially secured by assets of debtor, the preferential transfer can be protected by § 547(c)(1) only to the extent that it is secured by estate assets. For example, in In re Powerine Oil Company, it was held that the trustee could recover the preferential payment made by debtor to a creditor who held a standby letter of credit issued by a bank on account of debtor to the extent that the bank’s reimbursement claim against debtor was unsecured by assets of debtor. See In re Powerine Oil Company, 59 F.3d at 974. The court reasoned that when debtor paid the creditor, the bank’s exposure under the letters of credit" }, { "docid": "11766209", "title": "", "text": "14 transfers or declined additional discovery by mistake, but as a strategic decision regarding the conduct of the case. The court also concluded Taylor would be unable to trace the funds sufficiently to establish the existence of a constructive trust. With specific regard to the motion to reconsider the prior summary judgment ruling, the court noted it could be analyzed under either Rule 59(e) or Rule 60(b). The court held the three reports could have been discovered through due diligence at the time of the summary judgment hearing, and concluded relief under Rule 59(e) was therefore not appropriate. The court also rejected the conclusion it should reconsider under Rule 60(b), because there was no excusable neglect; the previous counsel had made a strategic decision not to contest the issue. The order denying the first motion to reconsider was entered on July 8, 1993. Taylor filed its “Notice of Motion and Motion for Reconsideration of Order Re: ‘Property of the Debtor’” on January 28, 1994 (hereinafter, “second motion to reconsider”). This motion was based on the Ninth Circuit Court of Appeals decision in Mitsui Manuf. Bank v. Unicom Computer Corp. (In re Unicom Computer Corp.), 13 F.3d 321 (9th Cir.1994). In Unicom, the Court of Appeals dealt with an action to recover an avoidable preference under section 547. The debtor had wrongfully obtained a cheek that should have been paid to a creditor. Subsequently, the debtor paid the creditor the amount the debtor had wrongfully received, and then filed its petition in bankruptcy. The Court of Appeals held that the trustee for the debtor could not recover the transfer as a preference, because the funds were held subject to a constructive trust on the creditor’s behalf and thus were not property of the debtor as is required by section 547(b). The court’s reasoning was as follows: (1) “property of the debtor” means property that would have been property of the estate under section 541 but for the transfer, 13 F.3d at 324; and (2) property held in constructive trust is not property of the estate, and therefore is not property of" }, { "docid": "7599946", "title": "", "text": "to RSW depleted the estate of its only significant asset that would have been available to its other creditors. This is the type of payment Congress intended the preference section to reach. We have no trouble concluding the stock transfer was a preference under Section 547 of the Bankruptcy Code. As such, RSW had an actual conflict with the debtor and was therefore disqualified from serving as counsel under § 327, unless payment to it was in the ordinary course of business. B. Payment in the Ordinary Course of Business Even if a payment is considered a preference under Section 547(b), it may not be subject to avoidance if it was made in the ordinary course of business, as defined in 11 U.S.C. § 547(c). The purpose of Section 547(c) is to leave undisturbed normal financial relations between a debt- or and its creditors, even as a company approaches bankruptcy. It protects “recurring, customary credit transactions that are incurred and paid in the ordinary course of business of the debtor and the debtor’s transferee.” 5 Collier on Bankruptcy, 547-47. We conclude, however, that the debtor’s stock transfer to RSW in this case was not made in the ordinary course of business dealings between the two parties, nor was it made according to ordinary business terms. In reaching the opposite conclusion, the Bankruptcy Court concluded the stock transfer was made in the ordinary course of business, and was thus acceptable even if one concluded the payment constituted a preferential transfer under § 547(b). The Court accepted RSW’s assertion that its ordinary billing procedure with First Jersey was to submit a number of invoices after several months, and then negotiate the amount and method of payment. Counsel explained, “we would go to the debtor with the invoices in hand, submit them to the client, discuss with the client whether the bills should be adjusted, and in most cases they were adjusted downward, and then work out some sort of a payment on that particular group of invoices.” Bankruptcy Docket No. 30 at 32. A trustee may not avoid a preferential transfer to" }, { "docid": "22297777", "title": "", "text": "recovery of the Debtor’s payment to Baker & Schultz. First, the payment represents a decidedly unequal distribution among creditors. Instead of writing a single check to Baker & Schultz for 100 percent of the amount owed to it, the Debtor could have written several checks (which presumably would also have been honored) paying off each of his creditors on a pro rata basis. Despite its having been paid off completely within the 90-day preference-recovery period, Baker & Schultz attempts to retain its payment on the basis of the fortuity (from its perspective) that the Bank had extended credit where no credit was due. Such a fortuity should not block recovery as far as the equal-distribution rationale is concerned. Baker & Schultz received a full payment on its debt, while other creditors did not; that places the payment within the scope of the avoidance power’s first purpose. Second, allowing the recapture of payments structured like the one before us would further the goal of preventing competition to dismember the debtor. Hungry creditors can exert pressure on desperate debtors to engage in such dealings. Section 547 was designed to take away the incentive for such competitive last-minute asset-grabbing. One final perplexing issue must be addressed. We have concluded that the Debtor’s payment involved “an interest of the debtor - in property.” All of section 547(b)’s formal requirements for an avoidable preference have thus been met by the Trustee. But courts have also long held that to be avoidable, transfers must result in a depletion or diminution of the debtor’s estate. 4 Collier H 547.03, at 547-22.2 (whether debtor’s estate was depleted or diminished by transfer is a “fundamental inquiry”). This requirement is normally considered part of the search for a transfer of the debtor’s interest in property. Notice that the discussion thus far has not specifically involved the notion of the debt- or’s “estate”; instead we have focused on the debtor’s “property.” In fact, section 547 does not contain the word “estate.” What is the distinction between the debt- or’s “estate” and the debtor’s “property”? The debtor’s estate is generally not considered" }, { "docid": "17569428", "title": "", "text": "to Egidi, she could have paid other creditors or purchased other assets that would have become part of the estate and been available to other creditors. Because Egidi chose to pay MBNA from the lines of credit, the other creditors were denied payment or an opportunity for payment. “Because the debtor ‘could have purchased a yacht or acquired some other assets instead of paying [her] debt,’ the assets in the estate at the time of bankruptcy were less than they could have been” and the transfer, which diminished the estate, was an avoidable preference. McLemore v. Third Nat’l Bank in Nashville (In re Montgomery), 983 F.2d 1389, 1395 (6th Cir.1993); Yoppolo v. Greenwood Trust Co., (In re Spitler), 213 B.R. 995, 998 (Bankr.N.D.Ohio 1997). “The purpose of the law of preferences is to secure an equal distribution of the bankrupt’s assets among his creditors of like class.” Deel Rent-A-Car, Inc. v. Levine, 721 F.2d 750, 756 (11th Cir.1983) (quoting Walker, 296 F. at 852). Our sister circuits that have considered this issue have reached the same conclusion that we reach today. In a decision with virtually identical facts, the Tenth Circuit concluded that the transfer of funds from one credit card company to MBNA to pay a credit card debt, at the direction of the debtor, constituted a preference that could be avoided by the trustee because the debtor had control of the funds, directed their distribution, and the transfer diminished the estate by depriving “the bankruptcy estate of resources which would otherwise have been used to satisfy the claims of creditors.” In re Marshall, 550 F.3d at 1256. The Sixth Circuit reached an identical conclusion in a decision where a trustee sought to avoid a balance transfer from one credit card company to another as preferential under § 547 of the Bankruptcy Code. In re Dilworth, 560 F.3d 562 (6th Cir.2009). “Because the funds transferred by Citi to MBNA at Dilworth’s direction were not earmarked funds and because their transfer diminished the bankruptcy estate, those funds were property in which Dil-worth had an interest. The [Bankruptcy [C]ourt [in Dilworth]" }, { "docid": "4660804", "title": "", "text": "regarding elements 1 through 4. The transfer was to the creditor, GMAC, on account of a debt which arose by virtue of an unsatisfied antecedent judgment. Further, there is a presumption of insolvency under § 547(f) whereby “the debtor is presumed to have «been insolvent on and during the 90 days immediately preceding the date. ... of the petition.” This presumption may be rebutted if the creditor shows that the debtor’s assets were greater than its liabilities. 4 Collier on Bankruptcy ¶ 547-26, at 547-100 (15th ed. 1983). GMAC, the creditor in this case, however, did not attempt to rebut the presumption. With reference to the time limits required by the fourth element, both the service of the garnishment summons and the transfer of the funds occurred within less than 90 days preceding the filing of the debtors’ petition in bankruptcy. Therefore, the only issue remaining which this court must determine is whether the requirements of the fifth element have been met in this case. Under § 547(b)(5), a pre-bankruptcy transfer may be avoided as a preference if the transfer enables one creditor to recover more on his claim than other creditors of the same class. The primary purpose of the preference prohibition is to discourage action by either the debtor or creditors as the debtor approaches bankruptcy and to provide equality of distribution among the creditors. In re Conn, 9 B.R. 431 (Bkrtcy.N.D. Ohio, 1981). The intent of Section 547(b)(5) is to avoid transfers of property “which enable creditors to receive more than they would have received had the estate been liquidated and the disputed transfer not made.” Barash v. Public Finance Corp., 658 F.2d 504, 509 (7th Cir.1981). Clearly, GMAC has recovered more on its claim than any other creditor. Although the debtors propose to pay 100 per cent of creditors’ claims under their plan, GMAC has already received payment in full, rather than receiving its pro rata share of the debtors’ monthly payments over the life of the plan. Additionally, there is absolutely no guarantee that the plan will be fully consummated. The absence of any guarantee" }, { "docid": "623357", "title": "", "text": "of the Bankruptcy Code. Clearly, there is a question as to whether a transfer may be avoided if the preference is merely a technical one. See In re Biggers, 249 B.R. 873, 877-79 (Bankr.M.D.Tenn.2000). “Essentially, a voidable preference must have depleted the estate.” In re Ramba, Inc., 437 F.3d 457, 460 (5th Cir.2006) (citing Gulf Oil Corp. v. Fuel Oil Supply & Terminaling, Inc., 837 F.2d 224, 230-31 (5th Cir.1988)). In Ramba, for example, the Fifth Circuit concluded that the transfer of fully encumbered assets did not deplete the estate and could not be avoided as a preference, since the Debtor held bare legal title to those assets. Likewise, when a debtor exchanges one secured debt for another, the estate is not diminished. See Shapiro v. Homecomings Financial Network, Inc. (In re Davis), 319 B.R. 532, 536 (Bankr.E.D.Mich.2005); Gregory v. Community Credit Co. (In re Biggers), 249 B.R. 873, 877-79 (Bankr.M.D.Tenn.2000). The Court concludes that, in this case, the Defendant’s refinance of its original loan in the amount of $122,102.17, and its perfection of its own mortgage for the original loan amount did not result in a diminution of the estate. However, with respect to the additional $25,897.83 loaned to the Debtor for home improvements, the Defendant depleted the assets available for distribution to unsecured creditors by placing a hen upon what was, at that time, unencumbered property to secure the additional loan. The Defendant then failed to avail itself of the safe harbor of § 547(e)(2), which would have sheltered the Defendant from this preference action, by timely perfecting its interest in the Debtor’s homestead property. Thus, to the extent the Defendant’s mortgage secures the $25,897.83 home improvement loan, the Court concludes that, under the circumstances, the Trustee has established each of the elements of a preferential transfer under § 547(b) of the Bankruptcy Code. B. Contemporaneous Exchanges for New Value (11 U.S.C. § 547(c)(1)) The Defendant argues that § 547(c)(1) applies to protect the transfer of a security interest in the Debtor’s home from avoidance. Section 547(c)(1) provides that a trustee may not avoid a preferential transfer “to" }, { "docid": "9713156", "title": "", "text": "oh a pro rata basis because the collateral underlying his secured interest entitles him to the value of his claim, and the incentive to dismember a financially unsound debtor is reduced by the assurance of certain payment. Section 547(b) implements Congress’ twin goals, while § 547(c) exempts certain preferential transfers which do not further these purposes. When the bankruptcy petition was filed, § 547(c)(1) provided that: The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. This defense “is grounded in the principle that the transfer of new value to the debtor will offset the payments, and the debtor’s estate will not be depleted to the detriment of other creditors.” In re Auto-Train Corp., 49 B.R. 605, 612 (Bankr.D.C.1985). The term “new value” includes the “release by a transferee of property previously transferred to such transferee....” 11 U.S.C. § 547(a)(2). Thus, where a creditor takes a perfected security interest in a debtor’s collateral and, within the ninety-day period preceding bankruptcy, releases that security interest upon the debtor’s performance of its obligation to the secured creditor, § 547(c)(1) protects the transfer to the creditor from the trustee’s voidance powers. See Drabkin v. A.I. Credit Corp., 800 F.2d 1153, 1157-58 (D.C.Cir.1986); Matter of Phoenix Steel Corp., 76 B.R. 373, 376 (Bankr.D.Del.1987). This outcome is consistent with the principle underlying § 547(c)(1) because the release of the debt- or’s collateral offsets the transfer to the creditor, thereby resulting in no depletion to the debtor’s estate. Instead of taking a direct security interest in FOSTI’s assets, Gulf was named beneficiary on the letters of credit issued by the Banks. The Banks held a security interest in FOSTI’s assets which at all times was equal to or in excess of FOSTI’s obligation to Gulf. FOSTI paid Gulf $40,-198.77 by check dated July 30, 1981, $244,-169.22 by check dated August 4," }, { "docid": "16675893", "title": "", "text": "of the debtor.... 11 U.S.C. § 547(c)(4). Thus, as with section 547(c)(1) the creditor must have advanced the debtor “new value,” only under this exception the “new value” need not be contemporaneous with the preferential transfer but could occur sometime after the transfer. The Appellee argues that even if his guarantee at the time of the preferential transfer did not constitute “new value,” once he was called upon to pay Salween his pro rata share of that obligation, i.e. $41,-000, that payment constituted “new value” to the debtor. See Bergquist v. Anderson-Greenwood Aviation, Corp. (In re Bellanca Aircraft Corp.), 850 F.2d 1275, 1281 n. 12 (8th Cir.1988). I disagree. “In determining whether a creditor has extended ‘new value,’ the focus is not on the harm or detriment to the creditor, but rather the issue before the Court is whether there is an augmentation or material benefit to the debtor’s estate.” Wolinsky v. Central Vermont Teachers Credit Union (In re Ford), 98 B.R. 669, 682 (Bankr.D.Vt.1989). See also Charisma Inv. Co., N.V. v. Air Florida Sys., Inc. (In re Jet Florida Sys., Inc.), 68 B.R. 596, 602 (S.D.Fla.1986), aff'd per curiam, 841 F.2d 1082 (11th Cir.1988). Therefore, the fact that the Appellee suffered a loss when he was forced to honor his guarantee is not relevant to our determination here; instead, we must look to whether the debtor’s estate was augmented or materially benefitted by the honoring of the guarantee. I cannot see how it was. Before the guarantees were honored, the debtor had received $200,000 of new value from Salween and incurred a corresponding increase in its debt of $200,000. After the guarantees were paid, the debtor’s estate did not increase in value nor was it benefit-ted in any way. Isolating this transaction for purposes of our analytical discussion, after the guarantees were paid the estate still retained the $200,000 in new value from Salween and still had a debt of a corresponding amount. No augmentation of the estate or benefit accrued to the estate because the guarantors were forced to pay. The assets and liabilities of the estate remained" }, { "docid": "9713155", "title": "", "text": "preferences. We decline to consider these issues because we find that the elements of § 547(c)(1) are satisfied by the tripartite relationship between FOSTI, Gulf and the Banks. Therefore, even if FOSTI could establish that every § 547(b) element was satisfied with respect to the gasoline and payment transfers, these transfers are not voidable preferences. III. Section 547 permits a trustee or debtor in possession to invalidate certain pre-bank-ruptcy transfers. Property brought into the estate under this section is shared by the debtor’s unsecured creditors on a pro rata basis. The preference section serves two congressional goals. First, by bringing back into the debtor’s estate certain transfers made shortly before the filing of the bankruptcy petition, it creates a disincentive for creditors to attack a financially unstable debtor. Second, it promotes equity among unsecured creditors by forcing these creditors to share the debtor’s unencumbered assets on a pro rata basis. These concerns apply to a lesser degree to creditors with fully secured claims. A fully secured creditor is not required to share with other creditors oh a pro rata basis because the collateral underlying his secured interest entitles him to the value of his claim, and the incentive to dismember a financially unsound debtor is reduced by the assurance of certain payment. Section 547(b) implements Congress’ twin goals, while § 547(c) exempts certain preferential transfers which do not further these purposes. When the bankruptcy petition was filed, § 547(c)(1) provided that: The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. This defense “is grounded in the principle that the transfer of new value to the debtor will offset the payments, and the debtor’s estate will not be depleted to the detriment of other creditors.” In re Auto-Train Corp., 49 B.R. 605, 612 (Bankr.D.C.1985). The term “new value” includes the “release by a transferee of" }, { "docid": "3873525", "title": "", "text": "not be invoked to defeat clear statutory language, nor to reach results inconsistent with the statutory scheme established by the Code. See In re Kelly, 841 F.2d 908, 913 n. 4 (9th Cir.1988); In re Shoreline Concrete Co., 831 F.2d 903, 905 (9th Cir.1987). Because the statutory language here provides no basis for the BAP’s “rule of reason,” we conclude that it was error to consider the right to draw on third-party letters of credit in deciding whether Koch had received a preference. Ill Having determined that Powerine’s $3.2 million payment to Koch was preferential under section 547(b), we must next determine whether any of section 547(c)’s exceptions apply. Placing heavy reliance on In re Fuel Oil Supply & Terminating, Inc., 837 F.2d 224 (5th Cir.1988), Koch contends the payment it received is protected by the “contemporaneous exchange for new value” exception of 11 U.S.C. § 547(e)(1). In Fuel Oil, the debtor paid one of its unsecured creditors within 90 days of filing for bankruptcy. Like Koch, the creditor was the beneficiary of two letters of credit securing payment if the debtor defaulted. The issuing banks “held a security interest in [debtor’s assets which at all times was equal to or in excess of [debtor]’s obligation to [the creditor].” Id. at 228. The Fifth Circuit held that the payment was protected by the contemporaneous exchange for new value exception, reasoning that, when the debtor paid the creditor, the banks’ exposure under the letters of credit was reduced by a corresponding amount. The banks’ contingent reimbursement claim against the debtor’s assets was thereby released, giving the debtor new value. “This outcome is consistent with the principle underlying § 547(c)(1),” the Fifth Circuit noted, “because the release of the debtor’s collateral offsets the transfer to the creditor, thereby resulting in no depletion to the debtor’s estate.” Id.; see also In re E.R. Fegert, Inc., 887 F.2d 955, 959 (9th Cir.1989). Unlike the banks in Fuel Oil Supply, which were fully secured, however, First National was only partially secured. When Powerine filed for bankruptcy, it had $282 million in secured debt and assets" } ]

[ { "docid": "13859005", "title": "", "text": "5H1.4 cases as set out in United States v. Slater. We there directed: [T]he district court should first make a factual finding to decide whether [defendant’s] physical and mental disabilities constitute “an extraordinary physical impairment.” United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990). If the court so finds, it should then consider whether that condition warrants a shorter term of imprisonment or an alternative to confinement. Id. The court should set forth its reasoning in support of its decision. Thus, we remand for resentencing on this issue. 971 F.2d 626, 635 (10th Cir.1992). We are persuaded that the trial court refused to follow the mandate of the Guidelines to exercise informed discretion guided by the standards of § 5H1.4 and our mandate set out in Slater. We are mindful of the dicta in United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994). However, Slater has established the procedures for these disability cases, and the court’s statement is sufficiently clear that it does not accept the principles set forth in § 5H1.4. Even though the judges may be generally familiar with the Guidelines, it is clear in this case the court was not familiar with our mandate set out in Slater. Nor is it clear that the trial court was familiar with special concerns of the Sentencing Commission when it promulgated § 5H1.4, at least one of which is concern about costs of imprisonment, not just concern for fairness to the defendant. We therefore remand for resentencing concerning the issue of downward departure under U.S.S.G: § 5H1.4. We direct the district court to first make a factual finding to decide whether Fisher’s disabilities constitute “an extraordinary physical impairment” under § 5H1.4 and, if so, whether that condition warrants a shorter term of imprisonment or an alternative to confinement such as home detention. The court should set forth reasoning in support of its decision. b. Ruling on Motion to Stay Execution of Sentence. On April 25, 1994, Fisher filed his motion for stay of the execution of his sentence and release pending appeal pursuant to Rule 38 of the" } ]

[ { "docid": "13124619", "title": "", "text": "custody” under Miranda. See 384 U.S. at 444, 86 S.Ct. 1602; Berkemer, 468 U.S. at 442, 104 S.Ct. 3138. II. Extraordinary Physical Impairment We next consider whether the district court failed to make adequate findings with respect to whether Mr. Chee had an “extraordinary physical impairment” at the time of his sentencing that would justify a downward departure from the sentencing guidelines. United States v. Slater, 971 F.2d 626, 635 (10th Cir.1992) (quotation omitted). Mr. Chee argues that the district court did not make adequate findings with respect to his age and physical condition under U.S.S.G. § 5H1.1 and U.S.S.G. § 5H1.4, respectively. Aplt. Br. at 28. Alternatively, if this court finds that he did not raise this issue below, Mr. Chee argues that we should still review it because trial counsel’s failure to raise the issue created an impediment to the district court’s ability to address it, the result of which was manifest injustice. Id. at 31 n. 1. We review compliance with the Federal Rules of Criminal Procedure de novo. United States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir.2006). Rule 32(i)(3)(B) states that a sentencing court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” The district court “may accept any undisputed portion of the presentence report as a finding of fact.” Fed.R.Crim.P. 32(i)(3)(A). “[T]o invoke the district court’s Rule 32 fact-finding obligation, the defendant is required to make ‘specific allegations’ of factual inaccuracy.” Rodriguez-Delma, 456 F.3d at 1253. An objection to the ultimate conclusions in the presentence report does not necessarily imply that a “controverted matter” exists. Id. Mr. Chee had “an affirmative duty to make a showing that the information in the [presentence report] was unreliable and articulate the reasons why the facts contained therein were untrue or inaccurate.” Id. at 1254 (quoting United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990)) (internal edit omitted). In this case," }, { "docid": "10546265", "title": "", "text": "in considering physical condition apart from that in determining whether there should be a downward departure. So I’m deciding, I guess you could say as a matter of law, that I’m not entitled to consider it beyond what’s provided in 5H1.4. We have acknowledged that, under section 5K2.0, departures can be grounded on either qualitative factors (i.e., factors not taken into account by the Sentencing Commission) or quantitative factors (i.e., factors which, while considered by the Commission, are present to an extraordinary degree in a particular case). See United States v. Sklar, 920 F.2d 107, 115-16 (1st Cir.1990); United States v. Brown, 899 F.2d at 97; see also United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir.1991). The appellant in effect argues that, even after deciding not to utilize section 5H1.4 in her case, the court should have considered a quantitative departure under section 5K2.0 because her condition was more extreme than the Sentencing Commission likely envisioned. Under section 5H1.4, “[p]hysical condition is not ordinarily relevant” in the departure calculus. We believe that, in a case like this one, section 5H1.4’s exception for “extraordinary physical impairment” is coextensive with section 5K2.0’s “mitigating circumstance” requirement insofar as departures are concerned. Put another way, the parameters of sections 5H1.4 and 5K2.0 are completely congruent when, as here, the central inquiry involves the degree to which imprisonment unduly imperils a defendant’s physical health; under either section, a downward departure would necessitate the existence of some extraordinary physical impairment. See U.S.S.G. § 5H1.4 (expressly requiring “extraordinary physical impairment” as a prerequisite to sentencing outside the guidelines); United States v. Sklar, 920 F.2d at 116 (quantitative departure requires that considered circumstance “far exceed the ordinary”); United States v. Studley, 907 F.2d 254, 258-59 (1st Cir.1990) (similar). We can think of no way—and the appellant has suggested none—in which Hilton’s physical impairment could be unextraordi-nary for purposes of section 5H1.4 and, at the same time, sufficiently out of the ordinary as to form the basis for a quantitative departure under section 5K2.0. That ends the matter. The district court found, supportably, that the defendant did" }, { "docid": "11390154", "title": "", "text": "the sentencing judge was aware of her departure authority, but simply refused to depart. There is little authority specifically addressing the circumstances under which AIDS is a proper ground for a downward departure. Still, sections of the guidelines could justify a downward departure under certain circumstances. Section 5H1.4, for example, contemplates downward departures for “extraordinary physical impairment.” See, e.g., United States v. Velasquez, 762 F.Supp. 39, 40 (E.D.N.Y.1991) (ruling that the defendant’s metastasized cancer was a serious, life-threatening illness which alone warranted a downward departure); see also United States v. Ghannam, 899 F.2d 327,329 (4th Cir.1990) (noting that “Section 5H1.4 allows downward departures any time a sentencing court is presented with sufficient evidence of impairment”); United States v. Slater, 971 F.2d 626, 634-35 (10th Cir.1992) (holding that a chronic depressive disorder can provide basis for departure). But see United States v. Carey, 895 F.2d 318 (7th Cir.1990) (ruling that although the defendant’s age, coupled with several serious operations for a brain tumor, did not necessarily justify a downward departure, more particularized findings of an extraordinary physical impairment would support the district court’s decision to depart); United States v. DePew, 751 F.Supp. 1195, 1199 (E.D.Va.1990) (finding that AIDS alone “is not such a ‘physical impairment’; nor is cancer or various other terminal or life threatening conditions”), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, — U.S.-, 112 S.Ct. 210, 116 L.Ed.2d 169 (1991). Whether AIDS alone, or AIDS accompanied by the physical deterioration characterizing the latter stages of the disease, warrants a downward departure need not be decided today. Upon remand, the district court will have the opportunity to exercise its discretion as permitted under the guidelines. For these reasons, the district court’s sentence is VACATED and this case is REMANDED for resentencing consistent with this opinion." }, { "docid": "17528228", "title": "", "text": "orientation, emotional fragility, and general vulnerability as § 5H1 factors). We could remand the matter to the district court for additional fact finding, but we think doing such would serve no purpose. We do not believe that deafness, without more, can ever serve as the basis for a § 5H1.4 downward departure. Indeed, a review of the case law reveals that it is not enough merely to have a disability to qualify for a downward departure under § 5H1.4. Rather, as the guidelines explicitly state, the physical impairment must truly be “extraordinary.” This court has previously denied § 5H1.4 relief to defendants, holding that their disabilities were not “extraordinary physical impairments.” See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir.1995) (HIV-positive status); United States v. Harpst, 949 F.2d 860, 863-64 (6th Cir.1991) (suicidal tendencies and heart problems). But see United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir.1995) (remanding to district court for additional factual finding on whether defendant’s diabetes, hypertension, ulcers, hypothyroidism, and depression qualified for § 5H1.4 departure). Other courts are in accord with the view that § 5H1.4 relief is extremely difficult to obtain. See, e.g., Martinez-Guerrero, 987 F.2d at 621 (legal blindness not an “extraordinary physical impairment”); United States v. Guajardo, 950 F.2d 203, 208 (5th Cir.1991) (age, cancer, high blood pressure, fused right ankle, amputated leg, drug dependency insufficient to justify § 5H1.4 relief), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); Phillips v. United States, 836 F.Supp. 965 (N.D.N.Y.1993) (denying § 5H1.4 request by blind prisoner). In this case, the district court specifically recommended that the United States Bureau of Prisons take Russell’s disability into consideration and place him at a facility that is equipped to accommodate his needs. See J.A. at 57 (Judgment in a Criminal Case). Cf. Martinez-Guerrero, 987 F.2d at 620 (district court relied on Bureau of Prisons’ ability to care for defendant in finding that his disability was not an extraordinary impairment under section 5H1.4). Russell does not allege that the prison services have been inadequate to accommodate his disability, nor does he" }, { "docid": "7204737", "title": "", "text": "C, amend. 386. A departure under section 5H1.4 involves a two-step process. As explained by the Tenth Circuit: [T]he district court should first make a factual finding to decide whether [the defendant’s] physical and mental disabilities constitute “an extraordinary physical impairment.” United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990). If the court so finds, it should then consider whether the condition warrants a shorter term of imprisonment or an alternative to confinement. Id. United States v. Slater, 971 F.2d 626, 635 (10th Cir.1992). We agree with the Tenth Circuit that the finding whether a disability is “an extraordinary physical impairment” under section 5H1.4 is a factual finding. See, e.g., United States v. Roe, 976 F.2d 1216, 1218 (9th Cir.1992) (reversing a factual finding that extreme childhood abuse of defendant was not extraordinary under section 5H1.3). We review a district court’s factual findings for clear error, and will not reverse unless we are left with the “definite and firm conviction that a mistake has been committed.” United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir.1991). Here, the district court relied on the Bureau of Prisons’ ability to care for Martinez-Guerrero in finding that his disability was not an extraordinary impairment under section 5H1.4. The ability of the Bureau of Prisons to accommodate a disability is a factor which the district court may consider in making this factual finding. United States v. Hilton, 946 F.2d 955, 957-59 (1st Cir.1991); United States v. Pozzy, 902 F.2d 133, 138-39 (1st Cir.), cert. denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990); United States v. Greenwood, 928 F.2d 645 (4th Cir.1991). But it is not the only factor. A district court may consider any number of circumstances in making its finding on the question of extraordinary physical impairment under section 5H1.4. See United States v. Long, 977 F.2d 1264 (8th Cir.1992) (district court’s downward departure under section 5H1.4 affirmed on grounds that “an extraordinary physical impairment that results in extreme vulner ability is a legitimate basis for departure”); United States v. Lara, 905 F.2d 599, 603-05 (2d Cir.1990) (district court’s" }, { "docid": "7204740", "title": "", "text": "(9th Cir.1992). FERGUSON, Circuit Judge, concurring: I join the majority opinion in its conclusions 1) that the district court applied the wrong legal standard in determining whether Martinez-Guerrero suffered from an extraordinary physical impairment within the meaning of guidelines section 5H1.4, and 2) that the sentence should be affirmed because Martinez-Guerrero failed to meet his burden for justifying downward departure on the basis of his potential for becoming blind in prison. I write separately to highlight the breadth of the appropriate inquiry under section 5H1.4 and the narrowness of our decision in this case. As the majority opinion indicates, the district court applied the wrong legal standard by limiting its inquiry concerning extraordinary physical impairment under section 5H1.4 to whether the Bureau of Prisons can accommodate a defendant’s impairment. Instead,, a district court properly engages in a two-step analysis, the first of which is to make a factual finding as to whether a defendant’s physical and mental disabilities constitute an extraordinary physical impairment under section 5H1.4. If the district court finds that an extraordinary physical impairment exists, it then exercises its discretion concerning whether downward departure is warranted, either through a shorter term of imprisonment or an alternative to confinement. The threshold factual finding of extraordinary physical impairment is not to be made in the abstract; the question is whether the defendant’s impairment is extraordinary under section 5H14- In other words, the proper finding involves a determination of whether the defendant’s impairment is sufficiently extraordinary to permit downward departure from the otherwise applicable guidelines sentencing range. Thus, conditions that might be entirely ordinary or widespread in the world outside of prison may still constitute extraordinary physical impairments under section 5H1.4. See, e.g., United States v. Lara, 905 F.2d 599, 603 (2d Cir.1990) (upholding a finding of extraordinary physical impairment “because of the defendant’s particular vulnerability [to victimization in prison] due to his immature appearance, sexual orientation, and fragility.”) Furthermore, the permissibility of downward departure is informed by the language in section 5H1.4 that calls for a determination of the efficiency and cost of departing below the applicable guideline range. A" }, { "docid": "7204738", "title": "", "text": "(9th Cir.1991). Here, the district court relied on the Bureau of Prisons’ ability to care for Martinez-Guerrero in finding that his disability was not an extraordinary impairment under section 5H1.4. The ability of the Bureau of Prisons to accommodate a disability is a factor which the district court may consider in making this factual finding. United States v. Hilton, 946 F.2d 955, 957-59 (1st Cir.1991); United States v. Pozzy, 902 F.2d 133, 138-39 (1st Cir.), cert. denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990); United States v. Greenwood, 928 F.2d 645 (4th Cir.1991). But it is not the only factor. A district court may consider any number of circumstances in making its finding on the question of extraordinary physical impairment under section 5H1.4. See United States v. Long, 977 F.2d 1264 (8th Cir.1992) (district court’s downward departure under section 5H1.4 affirmed on grounds that “an extraordinary physical impairment that results in extreme vulner ability is a legitimate basis for departure”); United States v. Lara, 905 F.2d 599, 603-05 (2d Cir.1990) (district court’s downward departure affirmed based on the defendant’s “potential for victimization” due to a combination of U.S.S.G. §§ 5H1.1 (age), 5H1.3 (mental condition) & 5H1.4). In the present case, the only circumstances presented to the district court were that Martinez-Guerrero was legally blind and that the prison at Springfield could accommodate his blindness. On the basis of this evidence, the district court found that Martinez-Guerrero did not have an extraordinary physical impairment under section 5H1.4. We cannot say this finding is clearly erroneous. Thus, on the record before us, Martinez-Guerrero did not have an extraordinary physical impairment under section 5H1.4. Because he did not, the district court did not err in concluding that it had no discretion to depart downward from the guidelines. AFFIRMED. . An ophthalmologist estimated Martinez-Guerrero’s visual acuity at 20/200 and expected a reduction to less than 20/400 over the next several years. . Martinez-Guerrero committed his offense in April 1991. Because the subsequent amendment merely clarified the guideline, we may apply it retroactively. See United States v. Scarano, 975 F.2d 580, 587" }, { "docid": "10546264", "title": "", "text": "downward departure independent of U.S.S.G. § 5H1.4. The appellant’s claim rests principally on a colloquy between her counsel and the court at sentencing: Mr. Billings [defense counsel]: Your Honor, I have a question about the court’s finding. Does the court find that Barbara Hilton’s medical condition does not constitute a basis as a matter of law from which there could have been a departure or is it the court’s finding that it might be a basis in law, but in exercising the court’s discretion, it’s [sic] decided not depart? The Court: My finding is that, under 5H1.4, that Ms. Hilton’s physical condition is as a matter of law not ordinarily relevant in determining sentence either outside the Guidelines or inside the Guidelines, and that only in cases of an extraordinary physical impairment is there a reason to impose a sentence other than imprisonment, and that that Guideline 5H1.4, demonstrates that the Commission in fact took into consideration physical condition and where it should be used, and therefore, under the case law that I’m not justified in considering physical condition apart from that in determining whether there should be a downward departure. So I’m deciding, I guess you could say as a matter of law, that I’m not entitled to consider it beyond what’s provided in 5H1.4. We have acknowledged that, under section 5K2.0, departures can be grounded on either qualitative factors (i.e., factors not taken into account by the Sentencing Commission) or quantitative factors (i.e., factors which, while considered by the Commission, are present to an extraordinary degree in a particular case). See United States v. Sklar, 920 F.2d 107, 115-16 (1st Cir.1990); United States v. Brown, 899 F.2d at 97; see also United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir.1991). The appellant in effect argues that, even after deciding not to utilize section 5H1.4 in her case, the court should have considered a quantitative departure under section 5K2.0 because her condition was more extreme than the Sentencing Commission likely envisioned. Under section 5H1.4, “[p]hysical condition is not ordinarily relevant” in the departure calculus. We believe that, in" }, { "docid": "7204736", "title": "", "text": "99, 102 (9th Cir.1990). We reject this argument because the record does not support it. The record plainly shows that the district court refused to depart downward because, according to its interpretation of section 5H1.4 and case law on which it relied, it had no discretion to depart downward. “We have jurisdiction to review a district court’s refusal to depart downward based on its interpretation of the law as barring such departure.” United States v. Goroza, 941 F.2d 905, 908 (9th Cir.1991). MERITS The applicable subsection of the policy statement for U.S.S.G. § 5H1.4 reads: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g. in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment. This text is a clarification of the previous section 5H1.4, and became effective on November 1, 1991. See U.S.S.G.App. C, amend. 386. A departure under section 5H1.4 involves a two-step process. As explained by the Tenth Circuit: [T]he district court should first make a factual finding to decide whether [the defendant’s] physical and mental disabilities constitute “an extraordinary physical impairment.” United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990). If the court so finds, it should then consider whether the condition warrants a shorter term of imprisonment or an alternative to confinement. Id. United States v. Slater, 971 F.2d 626, 635 (10th Cir.1992). We agree with the Tenth Circuit that the finding whether a disability is “an extraordinary physical impairment” under section 5H1.4 is a factual finding. See, e.g., United States v. Roe, 976 F.2d 1216, 1218 (9th Cir.1992) (reversing a factual finding that extreme childhood abuse of defendant was not extraordinary under section 5H1.3). We review a district court’s factual findings for clear error, and will not reverse unless we are left with the “definite and firm conviction that a mistake has been committed.” United States v. Ramos, 923 F.2d 1346, 1356" }, { "docid": "17528227", "title": "", "text": "part: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical im pairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient, and less costly than imprisonment. U.S.S.G. § 5H1.4. (underline in original). Russell asserts that his deafness coupled with his primary means of manual communication qualifies as an “extraordinary physical impairment.” He argues that he can only converse with others knowledgeable in sign language and would not be able to cry for help if he faced attack by other inmates. Again, the district court did not explicitly consider whether Russell’s disability triggers section 5H1.4. Courts may examine a wide variety of circumstances .in determining whether a downward departure is warranted under § 5H1. See United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir.1993); United States v. Lara, 905 F.2d 599, 603-04, (2d Cir.1990) (considering defendant’s immature appearance, sexual orientation, emotional fragility, and general vulnerability as § 5H1 factors). We could remand the matter to the district court for additional fact finding, but we think doing such would serve no purpose. We do not believe that deafness, without more, can ever serve as the basis for a § 5H1.4 downward departure. Indeed, a review of the case law reveals that it is not enough merely to have a disability to qualify for a downward departure under § 5H1.4. Rather, as the guidelines explicitly state, the physical impairment must truly be “extraordinary.” This court has previously denied § 5H1.4 relief to defendants, holding that their disabilities were not “extraordinary physical impairments.” See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir.1995) (HIV-positive status); United States v. Harpst, 949 F.2d 860, 863-64 (6th Cir.1991) (suicidal tendencies and heart problems). But see United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir.1995) (remanding to district court for additional factual finding on whether defendant’s diabetes, hypertension, ulcers, hypothyroidism, and depression qualified for § 5H1.4 departure). Other courts" }, { "docid": "17528226", "title": "", "text": "intentionally by Russell within the context of being harassed.” J.A. at 197 (Sentencing Transcript). Based on this finding of witness intimidation, we cannot say that the district court’s decision to deny an adjustment based upon acceptance of responsibility was improper. V. Next, Russell contends that he should have been granted a downward departure based upon U.S.S.G. § 5C1.2, the so-called “safety valve” provision, which enables a defendant to be sentenced without regard to the statutory minimum sentence if the defendant meets certain criteria. Because we have determined that the district court erred in finding that Russell qualified for the statutory minimum sentence, we find Russell’s § 5C1.2 arguments moot. VI. Finally, Russell argues he qualifies for a downward departure based upon his deafness pursuant to U.S.S.G. § 5H1.4. The district court indicated that it is without authority to consider § 5H1.4’s effect on the case since the court was imposing a statutory minimum sentence upon Russell. However, since we hold that the statutory minimum is inapplicable, section 5H1.4 must be addressed. The section states in part: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical im pairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient, and less costly than imprisonment. U.S.S.G. § 5H1.4. (underline in original). Russell asserts that his deafness coupled with his primary means of manual communication qualifies as an “extraordinary physical impairment.” He argues that he can only converse with others knowledgeable in sign language and would not be able to cry for help if he faced attack by other inmates. Again, the district court did not explicitly consider whether Russell’s disability triggers section 5H1.4. Courts may examine a wide variety of circumstances .in determining whether a downward departure is warranted under § 5H1. See United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir.1993); United States v. Lara, 905 F.2d 599, 603-04, (2d Cir.1990) (considering defendant’s immature appearance, sexual" }, { "docid": "8423827", "title": "", "text": "to Prosecute. . Lujan does not challenge the validity of his guilty plea or the sufficiency of the Rule 11 proceedings. . Lujan was free, “with the approval of the court and the consent of the government, ... [to] enter a conditional plea of guilty ..., reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.” Fed.R.Crim.P. 11(a)(2); see United States v. Caraballo-Cruz, 52 F.3d 390, 392 (1st Cir. 1995) (holding that the waiver of claims is overcome when the parties enter a conditional plea agreement that expressly preserves the defendant's right to raise an issue on appeal.). He declined this course and chose instead to waive his Kastigar claim by entering an unconditional plea of guilty. . By contrast, a district court's grant of a downward departure is subject to review for abuse of discretion. United States v. Vasquez, 279 F.3d 77, 79 (1st Cir.2002) (distinguishing between review of district court’s decision to grant and to deny a downward departure). . In such a case, the sentence would be imposed in violation of law and would be a result of a misapplication of the Guidelines. See 18 U.S.C. § 3742(a). . We recognize that at least five of our sister circuits have held that where the district court's belief that it lacked the authority to depart was premised on a finding of fact that the defendant did not suffer an \"extraordinary physical impairment,” the predicate finding of fact is reviewed for clear error. See, e.g., United States v. Brooke, 308 F.3d 17, 20-22 (D.C.Cir.2002); United States v. McQuilkin, 97 F.3d 723, 730 (3d Cir.1996); United States v. Rabins, 63 F.3d 721, 728 (8th Cir.1995); United States v. Fisher, 55 F.3d 481, 483-85 (10th Cir.1995); United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir.1993); cf. 18 U.S.C. § 3742(e) (\"The court of appeals ... shall accept the findings of fact of the district court unless they are clearly erroneous....”). Notwithstanding, we have held that the district court's factual determinations in refusal-to-depart cases are not reviewable. United States v." }, { "docid": "14111340", "title": "", "text": "would jeopardize this treatment.” 928 F.2d at 646. Defendant had lost both legs during his service in the Korean War. In Sanchez, the Ninth Circuit rejected the application of § 5H1.4 on the ground defendant’s drug dependence was not an extraordinary physical condition. We do not disagree with either disposition, but neither speaks to the issue as presented here. In Greenwood, defendant’s particular physical condition gave the court no other sentencing option. In Sanchez, the guidelines directly address the bearing of drug dependency on sentencing decisions. The plain language of the Policy Statement of § 5H1.4 provides: “[A]n extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” (emphasis added). While the example proffered illustrates the Policy Statement, it does not present the exclusive means of carrying it out. To so hold ignores the words “below the applicable guideline range.” This reading finds support in United States v. Ghannam, 899 F.2d at 329, in which the Fourth Circuit affirmed the district court’s rejection of defendant’s similar argument that § 5H1.4 was intended to eliminate rather than reduce his sentence. The Fourth Circuit stated, “Section 5H1.4 does not, however, contemplate that a defendant’s physical condition is relevant only to the decision whether to impose imprisonment. Section 5H1.4 allows downward departures any time a sentencing court is presented with sufficient evidence of impairment.” Id. at 329. The court reasoned the greater departure, no imprisonment, necessarily included the lesser departure, shorter imprisonment. Id. The First Circuit had the same interpretation of § 5H1.4, citing Ghannam. “[A] sentencing court is not faced with an all-or-nothing choice between the GSR-range [Guideline Sentencing Range] imprisonment or no imprisonment, but may lawfully decide to impose a reduced prison sentence below the GSR.” United States v. Hilton, 946 F.2d 955, 958 (1st Cir.1991). Of course, the extent of departure must be reasonable in light of the circumstances of the particular case. Id. We agree with the analysis of the First and" }, { "docid": "5815543", "title": "", "text": "to the district court, we do not attempt to define what constitutes an “extraordinary physical impairment” for that determination should be left to the trier of fact because it is a legal conclusion inextricably based on the particular facts of each ease. The district court is certainly free to look to other courts for guidance to see what they considered an “extraordinary physical impairment.” See, e.g., United States v. Le-Blanc, 24 F.3d 340, 348-49 (1st Cir.), cert. denied sub nom., Weinstein v. United States, — U.S.-, 115 S.Ct. 250, 130 L.Ed.2d 172 (1994) (a heart condition that could be treated with medication is not sufficient to warrant downward departure); United States v. Streat, 22 F.3d 109, 112-13 (6th Cir.1994) (sentence vacated and remanded to make particularized findings of whether AIDS is an extraordinary impairment); United States v. Goff, 6 F.3d 363, 366 (6th Cir.1993) (a wheelchair bound quadriplegic is not entitled to the departure); United States v. Slater, 971 F.2d 626, 634-35 (10th Cir.1992) (finding that borderline mental retardation, chronic major depressive disorder, scoliosis and disabling back pain are not adequate grounds without particularized findings); United States v. Greenwood, 928 F.2d 645, 646 (4th Cir.1991) (double amputee whose treatment would be jeopardized in prison is granted a departure). C. The general authority to depart from the Guidelines is found in U.S.S.G. § 5K2.0 which states that the sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ (Quoting 18 U.S.C. § 3553(b)). While any departure is viewed deferentially by this court, we do review the degree of departure to determine if it is linked to the structure of the Guidelines. United States v. Ferro, 900 F.2d 1057, 1062 (7th Cir.1990). This means that district courts must: employ the rationale and methodology of the guidelines when considering cases not adequately addressed by existing guidelines. The" }, { "docid": "14111341", "title": "", "text": "Ghannam, 899 F.2d at 329, in which the Fourth Circuit affirmed the district court’s rejection of defendant’s similar argument that § 5H1.4 was intended to eliminate rather than reduce his sentence. The Fourth Circuit stated, “Section 5H1.4 does not, however, contemplate that a defendant’s physical condition is relevant only to the decision whether to impose imprisonment. Section 5H1.4 allows downward departures any time a sentencing court is presented with sufficient evidence of impairment.” Id. at 329. The court reasoned the greater departure, no imprisonment, necessarily included the lesser departure, shorter imprisonment. Id. The First Circuit had the same interpretation of § 5H1.4, citing Ghannam. “[A] sentencing court is not faced with an all-or-nothing choice between the GSR-range [Guideline Sentencing Range] imprisonment or no imprisonment, but may lawfully decide to impose a reduced prison sentence below the GSR.” United States v. Hilton, 946 F.2d 955, 958 (1st Cir.1991). Of course, the extent of departure must be reasonable in light of the circumstances of the particular case. Id. We agree with the analysis of the First and Fourth Circuits. The district court erred in failing to apply § 5H1.4 to decide whether Mr. Porter’s showing of physical impairment met the guideline definition and, if so, to what extent a downward departure or alternative sentence was warranted. We therefore remand this case for the court to make the appropriate findings under § 5H1.4. To do so, the district court should first make a factual finding to decide whether Mr. Porter’s physical and mental disabilities constitute “an extraordinary physical impairment.” United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990). If the court so finds, it should then consider whether that condition warrants a shorter term of imprisonment or an alternative to confinement. Id. The court should set forth its reasoning in support of its decision. Thus, we remand for resentencing on this issue. V. Flight Instruction — Defendant Slater Mr. Slater contends the court’s instructing the jury on his flight violates the prohibition against double jeopardy. In the first trial, he reminds, the jury acquitted him of assault on a DEA agent on" }, { "docid": "17528229", "title": "", "text": "are in accord with the view that § 5H1.4 relief is extremely difficult to obtain. See, e.g., Martinez-Guerrero, 987 F.2d at 621 (legal blindness not an “extraordinary physical impairment”); United States v. Guajardo, 950 F.2d 203, 208 (5th Cir.1991) (age, cancer, high blood pressure, fused right ankle, amputated leg, drug dependency insufficient to justify § 5H1.4 relief), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); Phillips v. United States, 836 F.Supp. 965 (N.D.N.Y.1993) (denying § 5H1.4 request by blind prisoner). In this case, the district court specifically recommended that the United States Bureau of Prisons take Russell’s disability into consideration and place him at a facility that is equipped to accommodate his needs. See J.A. at 57 (Judgment in a Criminal Case). Cf. Martinez-Guerrero, 987 F.2d at 620 (district court relied on Bureau of Prisons’ ability to care for defendant in finding that his disability was not an extraordinary impairment under section 5H1.4). Russell does not allege that the prison services have been inadequate to accommodate his disability, nor does he allege that the prison has failed to protect him against any attackers. Russell cites U.S. v. Long, 977 F.2d 1264 (8th Cir.1992), as an example of a court granting a § 5H1.4 downward departure for an extraordinary physical impairment. The Eighth Circuit never specified the exact nature of Long’s disability, but affirmed the district court’s section 5H1.4 downward departure based upon Long’s “physical injuries” and reports from doctors that Long’s injuries would leave him particularly vulnerable to victimization and potentially fatal injuries. Long, 977 F.2d at 1277-78. Based on these reports, the district court in Long concluded that “the imposition of a term of imprisonment could be the equivalent of a death sentence for Mr. Long.” Id. at 1278. We simply do not believe that Russell’s deafness gives rise to the same extraordinary situation present in Long. VII. For the reasons stated herein, we VACATE Russell’s sentence and REMAND for re-sentencing in accordance with this opinion. In all other respects, we AFFIRM the district court’s denial of relief from Russell’s sentence. . Russell is deaf." }, { "docid": "7204739", "title": "", "text": "downward departure affirmed based on the defendant’s “potential for victimization” due to a combination of U.S.S.G. §§ 5H1.1 (age), 5H1.3 (mental condition) & 5H1.4). In the present case, the only circumstances presented to the district court were that Martinez-Guerrero was legally blind and that the prison at Springfield could accommodate his blindness. On the basis of this evidence, the district court found that Martinez-Guerrero did not have an extraordinary physical impairment under section 5H1.4. We cannot say this finding is clearly erroneous. Thus, on the record before us, Martinez-Guerrero did not have an extraordinary physical impairment under section 5H1.4. Because he did not, the district court did not err in concluding that it had no discretion to depart downward from the guidelines. AFFIRMED. . An ophthalmologist estimated Martinez-Guerrero’s visual acuity at 20/200 and expected a reduction to less than 20/400 over the next several years. . Martinez-Guerrero committed his offense in April 1991. Because the subsequent amendment merely clarified the guideline, we may apply it retroactively. See United States v. Scarano, 975 F.2d 580, 587 (9th Cir.1992). FERGUSON, Circuit Judge, concurring: I join the majority opinion in its conclusions 1) that the district court applied the wrong legal standard in determining whether Martinez-Guerrero suffered from an extraordinary physical impairment within the meaning of guidelines section 5H1.4, and 2) that the sentence should be affirmed because Martinez-Guerrero failed to meet his burden for justifying downward departure on the basis of his potential for becoming blind in prison. I write separately to highlight the breadth of the appropriate inquiry under section 5H1.4 and the narrowness of our decision in this case. As the majority opinion indicates, the district court applied the wrong legal standard by limiting its inquiry concerning extraordinary physical impairment under section 5H1.4 to whether the Bureau of Prisons can accommodate a defendant’s impairment. Instead,, a district court properly engages in a two-step analysis, the first of which is to make a factual finding as to whether a defendant’s physical and mental disabilities constitute an extraordinary physical impairment under section 5H1.4. If the district court finds that an extraordinary physical" }, { "docid": "11270105", "title": "", "text": "the District Court mistakenly believed it lacked the authority to depart but whether, at the sentencing hearing, there was testimony of threats of physical injury, a paradigm factual inquiry. While we have not explicitly stated that we lack jurisdiction to review the allegation of a factual error in the course of a discretionary refusal to depart, that conclusion is surely implicit in our cases. Moreover, we reject out of hand the dissent’s statement that “our decision in [United States v.] McQuilkin [, 97 F.3d 723 (3d Cir.1996) ] has already placed us on that side of the issue.” Dissent at 253. Indeed, says the dissent, McQuilkin is “the case that most clearly stands for the proposition that we can review for clear error in a ease like this one.” Id. at 249. But McQuilkin was not a case “like this one.” In McQuilkin, the District Court refused to grant a discretionary downward departure for extraordinary physical impairment, finding that the defendant’s “condition was ‘not that type of an impairment so severe and complete that the downward departure [was] ... warranted.’ ” Id. at 730. Then Judge, now Chief Judge, Scirica, writing for the majority, explained that this statement could mean one of two things: either “that McQuilkin’s impairment was not extraordinary enough to allow the court to depart under the authority of § 5H1.4; or that the nature of the impairment was sufficiently extraordinary to allow the court to depart, but that the court elected not to depart on this occasion.” Id. Judge Scirica interpreted the statement to mean that the District Court thought that McQuilken’s condition — a left arm injury, and a congenital defect in his left eye — did not qualify him for the requested departure. There was no question that McQuilkin actually had that condition; the only question was whether that condition was of the type that empowered the District Court to grant the departure. Thus, the District Court’s legal conclusion about its authority was at issue, not whether particular facts existed or whether its factual finding that McQuilkin was not as impaired as he claimed" }, { "docid": "11390153", "title": "", "text": "revoked accordingly yields two criminal history points, U.S.S.G. § 4Al.l(b), and the other two “unenhanced” convictions are counted at one point each, U.S.S.G. § 4Al.l(c). The two unenhanced, “one-point” convictions, when combined with the four prior convictions not at issue in this appeal (also valued at one point each), produce a total of six “one-point” criminal history points. Section 4Al.l(c), however, limits the total number of “one-point” sentences to four. Thus, upon remand, Streat should receive four points for the one-point convictions and two points for the sentence imposed upon probation revocation. In addition, a proper calculation of Streat’s criminal history category will take into account any points Streat should receive for the commission of the present offense while under a criminal justice sentence, and for the commission of the present offense within two years of his release from custody. II. AIDS As a Ground for Downward Departure Streat maintains that the district court was unaware it had discretion to depart downward on the ground that Streat was suffering from AIDS. The government counters that the sentencing judge was aware of her departure authority, but simply refused to depart. There is little authority specifically addressing the circumstances under which AIDS is a proper ground for a downward departure. Still, sections of the guidelines could justify a downward departure under certain circumstances. Section 5H1.4, for example, contemplates downward departures for “extraordinary physical impairment.” See, e.g., United States v. Velasquez, 762 F.Supp. 39, 40 (E.D.N.Y.1991) (ruling that the defendant’s metastasized cancer was a serious, life-threatening illness which alone warranted a downward departure); see also United States v. Ghannam, 899 F.2d 327,329 (4th Cir.1990) (noting that “Section 5H1.4 allows downward departures any time a sentencing court is presented with sufficient evidence of impairment”); United States v. Slater, 971 F.2d 626, 634-35 (10th Cir.1992) (holding that a chronic depressive disorder can provide basis for departure). But see United States v. Carey, 895 F.2d 318 (7th Cir.1990) (ruling that although the defendant’s age, coupled with several serious operations for a brain tumor, did not necessarily justify a downward departure, more particularized findings of an extraordinary" }, { "docid": "13891779", "title": "", "text": "9.Criminal History Woody also asserts that the use of prior convictions to increase his criminal history category was arbitrary and capricious and deprived him of the right to due process of law. As with several of Woody’s other arguments, this one is summary and completely unsupported by caselaw. Accordingly, we will not consider it. 10.Downward Departure Under § 5H14 Next, Woody, who is HIV positive but who does not have full-blown AIDS, argues that the district court erred in refusing to grant a downward departure under U.S.S.G. 28, 29 § 5H1.4 for an “extraordinary physical impairment.” An AIDS-afflicted individual is entitled to a downward departure under § 5H1.4 only when the disease has progressed to such an advanced stage that it could be characterized as an “extraordinary physical impairment.” See United States v. Thomas, 49 F.3d 253 (6th Cir.1995) (quoting United States v. DePew, 751 F.Supp. 1195, 1199 (E.D.Va.1990), aff'd, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873, 112 S.Ct. 210, 116 L.Ed.2d 169 (1991)). In granting a defendant’s request for a downward departure, a sentencing court is required to “provide articulable reasons, of a type contemplated by ... the Guidelines, and based on a sufficiently sound factual foundation to justify a departure from the Guidelines.” United States v. Carey, 895 F.2d 318, 322 (7th Cir.1990) (quotation omitted); see also United States v. Hendrickson, 22 F.3d 170, 175 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 209, 130 L.Ed.2d 138 (1994) (“we must determine whether the facts which underlie the grounds for the departure actually exist”); United States v. Sherman, 53 F.3d 782, 785-86 (7th Cir.1995). Woody presented no “sound factual foundation” which would support a downward departure for his HIV positive condition. Accordingly, we refuse to disturb the court’s finding that the defendant’s physical condition did not warrant a downward departure under § 5H1.4. 11. Downward Departure Under §§ 5K2.10, 5K2.11, 5K2.12 Finally, Woody argues that the district \"court erred in refusing to grant a downward departure under either U.S.S.G. § 5K2.10, § 5K2.11, or § 5K2.12. Because Woody failed to request a downward departure under" } ]

[ { "docid": "10119248", "title": "", "text": "the pretermination hearing he had requested, he argued that since the City Manager was both a witness and the decisionmaker, the hearing did not comply with due process. He explained that the hearing he received was not the “fair and impartial hearing required by the Constitution,” and “defendants clearly violated his rights to due process by not affording him an impartial decisionmaker at his discharge hearing.” App. 304, 362. The District Court required both parties to submit supplemental briefs in light of the Supreme Court’s then recent pronouncement in Loudermill. The District Court then granted plaintiffs motion and issued an injunction requiring as a matter of federal due process a trial-type preter-mination evidentiary hearing before a neutral decisionmaker. It concluded that under Michigan law, plaintiff had a sufficient “property interest” in his job to trigger the Loudermill due process procedures and that under Loudermill, and previous federal cases, plaintiff was entitled to a preter-mination hearing before a “neutral deci-sionmaker.” This appeal followed. The defendants contend here that the plaintiff had neither a “property interest” in his job, nor — if such a property interest does exist —the right to a hearing before an impartial judge. We do not reach the “property interest” issue, a complex problem as yet unresolved in Michigan law, for it is clear to us that, assuming such a property interest does exist, the procedures followed at plaintiff's hearing provided all the process that was due under Loudermill. Interpreting Loudermill, the Fourth and Fifth Circuits in Garraghty and Schaper, supra, have recently squarely held that the property interest created in the normal government job covered by a civil service system, which creates a “just cause” requirement for discharge, does not entitle the employee to an impartial judge at the pretermination “right-of-reply” hearing. The right to respond before the official responsible for the discharge is sufficient. We find no Court of Appeals holdings to the contrary. Some District Courts have held otherwise. Rosario Torres v. Hernandez Colon, 672 F.Supp. 639, 652-53 (D.P.R.1987) (neutral decisionmaker required in pretermination hearing); Cook v. Bd. of Educ., 671 F.Supp. 1110, 1116 (S.D.W.Va.1987)" } ]

[ { "docid": "9334370", "title": "", "text": "GOODWIN, Circuit Judge: Jaki Walker appeals the judgment, following a jury trial, in favor of the City of Berkeley, in her 42 U.S.C. § 1983 action alleging wrongful termination from her position with the City. Walker alleges that the City deprived her of due process because the decisionmakers at her pretermin-ation and post-termination hearings were biased against her. I. Pretermination Hearing Walker contends that the Assistant City Manager who conducted the pretermination hearing was biased against her. The district court granted summary judgment for the City on this claim. Walker’s due process claim depends on her having had a property right in continued employment. If she did, then the City could not deprive her of her position without due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Loudermill held that respondents had a property interest in their continued employment, because state law provided that they could not be dismissed without cause. See id. at 538-39, 105 S.Ct. at 1491-92. Like the respondents in Loudermill, Walker was a civil servant who, under City regulations, could be terminated only for cause. She therefore had a property interest in her employment that entitled her to due process protection. We next consider the degree of protection to which she was entitled. Louder-mill held that where public employment has due process protection, a hearing is required before termination takes effect. See id. at 542, 105 S.Ct. at 1493. Both sides agree that Walker received a preter-mination hearing on November 27, 1985. Walker contends, however, that Louder-mill also requires an impartial decision-maker and claims that the decisionmaker at her pretermination hearing did not so qualify- Since Loudermill, other circuits have not required that the decisionmaker in a preter-mination hearing be impartial, so long as due process is provided in a post-termination hearing. See, e.g., Duchesne v. Williams, 849 F.2d 1004 (6th Cir.1988) (no due process violation where allegedly bi ased city manager held pretermination hearing for chief building inspector, but Michigan law provided for a full post-termination hearing), cert. denied, 489 U.S. 1081, 109" }, { "docid": "10119249", "title": "", "text": "his job, nor — if such a property interest does exist —the right to a hearing before an impartial judge. We do not reach the “property interest” issue, a complex problem as yet unresolved in Michigan law, for it is clear to us that, assuming such a property interest does exist, the procedures followed at plaintiff's hearing provided all the process that was due under Loudermill. Interpreting Loudermill, the Fourth and Fifth Circuits in Garraghty and Schaper, supra, have recently squarely held that the property interest created in the normal government job covered by a civil service system, which creates a “just cause” requirement for discharge, does not entitle the employee to an impartial judge at the pretermination “right-of-reply” hearing. The right to respond before the official responsible for the discharge is sufficient. We find no Court of Appeals holdings to the contrary. Some District Courts have held otherwise. Rosario Torres v. Hernandez Colon, 672 F.Supp. 639, 652-53 (D.P.R.1987) (neutral decisionmaker required in pretermination hearing); Cook v. Bd. of Educ., 671 F.Supp. 1110, 1116 (S.D.W.Va.1987) (same); Salisbury v. Housing Auth., 615 F.Supp. 1433, 1438-41 (E.D.Ky.1985). This Court observed in our decision by Judge Timbers in Loudermill that the functions of a full adjudicatory, adversary, post-termination hearing and of a limited “right-of-reply” pretermination hearing are different: “[T]he fact that Ohio provided appellants in this case with full evidentiary hearings [with an impartial judge] after termination does not suggest that no other process was due.” 721 F.2d at 560. The purpose of the later formal hearing is to adjudicate facts and to formulate and decide on the legal principles applicable to the circumstances. The purpose of the preter-mination presentation to the supervisor is different: “[I]f they [the employees] had been afforded some limited right to challenge the impending discharges, the discharge order might well have been rescinded” because they would have had “an opportunity to present their side of the case” at an early stage to the official responsible for the discharge. Id. The Supreme Court accepted this reasoning in its opinion reviewing Loudermill. The Court said that before termination the employee" }, { "docid": "23233929", "title": "", "text": "the state must provide pre-termination, subsequent proceedings cannot serve to eliminate the essential requirement of a pre-termi-nation notice and opportunity to respond. Although the denial of a pre-termi-nation hearing is a constitutional violation sufficient to support damages, cf. Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir.1987), we must also independently assess the adequacy of the post-termination proceedings. For not only is such an assessment usually required to determine the necessary scope of pre-termination procedures, but the inadequacy of post-termination process may itself be the source of a distinct due process violation. Loudermill, 470 U.S. at 547 n. 12, 105 S.Ct. at 1496 n. 12. Sue argues that the post-termination proceedings provided her were constitutionally infirm. She asserts that the post-termination process was flawed because it was infected with bias at the administrative level when Executive Director White set aside the grievance panel decisions, and the Board affirmed the director’s actions. Sue alleges that these actors were biased because they harbored malice towards her stemming from her prior whistleblowing activities. If Sue’s allegations are true, then she has stated a valid due process claim premised on the flawed post-deprivation procedures. A biased proceeding is not a procedurally adequate one. At a minimum, Due Process requires a hearing before an impartial tribunal. Ward v. Village of Monroe-ville, 409 U.S. 57, 59-60, 93 S.Ct. 80, 83, 34 L.Ed.2d 267 (1972). This impartial tribunal requirement applies in both civil and criminal eases. Indeed, the requirement that proceedings which adjudicate individuals’ interests in life, liberty, or property be free from bias and partiality has been “jealously guarded.” Marshall v. Jerrico, 446 U.S. 238, 241-42, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980). Thus, this neutrality principle has been applied to a variety of settings, including administrative adjudications, in order to protect the “independent constitutional interest in fair adjudicative procedure.” Id. at 241^2 n. 2, 100 S.Ct. at 1613 n. 2. And, it has been invoked in the context of post-termination administrative proceedings. See Walker v. City of Berkeley, 951 F.2d 182,184 (9th Cir.1991) (failure to provide impartial decisionmaker at the post-termination hearing" }, { "docid": "18255370", "title": "", "text": "of due process rights is to order the process which was due). The Supreme Court has held that an employee with a property interest is entitled to a limited pretermination hearing which is to be followed by a more comprehensive post-termination hearing. Loudermill, 470 U.S. at 547, 105 S.Ct. 1487. Levine was entitled to a full post-termination hearing because there was no way to give Levine the process that he had been due, which was an opportunity to respond before the termination occurred. Cf. Loudermill, 470 U.S. at 547 n. 12, 105 S.Ct. 1487 (noting that the adequacy of pretermination and post-termination hearings are interrelated and that the scope of one affects the scope of the other). Thus, it was reasonable for the district court to order that a full evidentiary hearing be held. See id. at 547, 105 S.Ct. 1487. It was also not improper for the district court to order that the hearing be held before a neutral third-party. This court has held that for post-termination hearings an impartial decisionmaker is required. Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir.1991). The district court made a finding that persons working for the City would not be sufficiently neutral in this case after the extensive litigation between the City and Levine. Because this finding was not clearly erroneous, and an impartial decisionmaker is required, the district court did not err in ordering that a neutral third-party preside over the hearing. See id. III. Qualified Immunity The district court properly found that Flint was not personally liable for violating Levine’s due process rights based on qualified immunity. Under the defense of qualified immunity, a government official is immune from civil damages unless his conduct violates a clearly established right of which a reasonable person would have known. Long v. City and County of Honolulu, 511 F.3d 901, 905-06 (9th Cir. 2007). Determining whether a public official is entitled to qualified immunity involves a two-part analysis. Saucier v. Katz, 533 U.S. 194, 199, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we must determine whether the official violated a" }, { "docid": "11185304", "title": "", "text": "can be terminated only for specific reasons and West’s charge that the asserted reduction in force was a sham, we agree with the Seventh Circuit. The fact that Grand County labeled West’s discharge a “reduction in force” does not affect her entitlement to a pretermination hearing when she is asserting that the reduction in force was a sham aimed particularly at her. Cf. Goudeau, 823 F.2d at 1431 (Although not specifically addressing entitlement to a pretermination hearing, it concluded generally that “[w]ithout adequate due process protection, an employee ... can never discover whether the reasons offered for her discharge are true — or are false and a mere subterfuge.”). Thus, West was entitled to a preter-mination hearing. However, the standards the Supreme Court delineated in Louder-mill for pretermination hearings are not very stringent, and we agree with the district court that the meetings and consultations in this case satisfied constitutional mandates. The totality of the circumstances here indicate that West knew in advance of her termination that the county attorney proposed to eliminate her job. Furthermore, she had several pretermination opportunities to discuss her potential termination with the new county attorney and other county officials. As we observed in Seibert, “the totality of the procedures and opportunities which the [employer] afforded plaintiff were sufficient to satisfy constitutional requirements. Plaintiff was not fired out of the blue. Plaintiff was not fired for reasons that he did not know. Plaintiff was not fired without being given the ‘opportunity to present his side of the story.’ ” 867 F.2d at 599 (quoting Louder-mill, 470 U.S. at- 542, 105 S.Ct. at 1494). Here, West met with Coates for two hours on November 18, 1986, after Coates defeated Benge in the election. During this meeting, West later acknowledged, she learned that her job was in jeopardy and she discussed with Coates her rights under Grand County’s Personnel Policies and Procedures manual. See R., Deposition of Trisha L. West, Oct. 21, 1988, at 66, 68, 70. A brief facé-to-face meeting with a supervisor provides sufficient notice and opportunity to respond to satisfy the pretermination due process" }, { "docid": "5999766", "title": "", "text": "of the decision to terminate, not on the adequacy of the pretermination procedure. Sutton further argues that Appellants failed to explain at the meeting, and give him an opportunity to respond, to the “other class related issues” referred to on the Employee Counseling Statement. But the Statement clearly stated the “Incident” in question occurred in June 2010, before Sutton began teaching, a clear reference to the Facebook posting. Sutton was given the Statement before the meeting ended and declined to make a further statement before he signed the form. We have repeatedly observed that an employer need not disclose “all the details of the charges against the employee.” Larson v. City of Fergus Falls, 229 F.3d 692, 697 (8th Cir. 2000), citing Schleck, 939 F.2d at 642. Therefore, reasonable officials would not have understood that they must explain subsidiary employment issues that were vaguely alluded to before terminating Sutton, when he chose not to pursue those issues. Sutton also complains that the pretermination meeting was not “meaningful” because the decision to terminate him was made before the meeting took place. “Due process ... does not require predecision hearings. It only requires an opportunity to be heard prior to the termination of benefits.” Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir.) (emphasis added), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988). Here, the pre-termination meeting was timely, and it served as the initial check against mistaken decisions that Louder-mill requires. Even if Appellants decided to terminate Sutton before the meeting occurred, they might well have reconsid ered had he persuasively denied responsibility for the Facebook posting. Sutton further suggests he was denied pre-termination due process because Appellants were biased decisionmakers due to his discovery of deficiencies in the Funeral Science program. An impartial decisionmaker is not required at the pretermination stage so long as the employee has access to post-termination proceedings before an impartial adjudicator. See Locurto v. Safir, 264 F.3d 154, 174 (2d Cir. 2001) (collecting cases); Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988) (en banc) (post-termination proceedings “serve" }, { "docid": "14298194", "title": "", "text": "of the position to be RIF’d. The District Court must consider this matter on remand in determining whether Thompson had a protected property right. sft % # If the District Court finds that Thompson had a protected property right, it must next determine what process he was due. It is important to note that courts finding a continued property interest in RIF’d positions have demanded only the most skeletal pretermination process. “The standards for a pretermination hearing are not stringent because of the expectation that a more formal post-termination hearing will remedy any resulting deficiencies.” Id. Following the Court’s holding in Loud-ermill, see 470 U.S. at 546, 105 S.Ct. 1487, the West court noted that a “full evidentia-ry hearing is not required,” but rather, “notice and an opportunity to respond” suffices to meet the employer’s due process burden. West, 967 F.2d at 367. The court therefore held that the plaintiffs opportunity to “discuss her potential termination” with superiors represented adequate pretermination process for a RIF’d employee, especially where the employee later received a formal grievance hearing before presumptively neutral decisionmak-ers. Id. at 368-69. While the availability of post-deprivation proceedings may limit how much preter-mination process is due, the converse is also true. The Seventh Circuit, for example, acknowledged that “when there is an opportunity for a full post-termination hearing, due process does not require an employer to provide full ‘trial-type rights.’ ” Baird v. Bd. of Educ. for Warren Comm’ty Unit Sch. Dist. No. 205, 389 F.3d 685, 690-91 (7th Cir.2004). But the court further held that “[a] state law' breach of contract claim is not an adequate post-termination remedy for a terminated employee who possesses a present entitlement and who has been afforded only a limited pre-termination hearing.” Id. at 692. To avoid granting substantial pre-deprivation process to an employee with a present entitlement to his job, an employer must provide post-deprivation procedures that “are characterized by promptness and by the ability to restore the claimant to possession.” Id. If the District Court reaches the ultimate question — whether the Lottery Board denied Thompson process that he was due" }, { "docid": "15599945", "title": "", "text": "followed in dismissing him deprived him of due process. Putting aside his conclusory allegations that the pre-termination hearing offered to plaintiff was a “sham,” plaintiffs claim boils down to his argument that the pre-ter-mination hearing offered to him should have been before an impartial decisionmaker rather than the same agency that had brought charges against him. Defendant concedes that plaintiff, as a career employee, had a property interest in continuous employment. See P.R. Laws Ann. tit. 3, § 1336 (1978). Cf. Laureano-Agosto v. Garcia-Caraballo, 731 F.2d 101 (1st Cir.1984). Defendant argues, however, that he complied with the due process requirements set forth in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and that, because he violated no clearly established law, he is entitled to qualified immunity. We agree with defendant that he is entitled to qualified immunity from damages arising from plaintiffs claim that defendant violated his procedural due process rights in dismissing him from his career position. The procedures defendant followed accord with the guidelines set forth in Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495. As there appears to have been no constitutional violation at all in the procedures afforded, it follows that defendant was entitled to qualified immunity because his “actions could reasonably have been thought consistent with the rights [he is] alleged to have violated.” Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). In Louder-mill, the Supreme Court, while holding that “some kind of hearing” is required, 470 U.S. at 542, 105 S.Ct. at 1493, stated that “the pretermination ‘hearing’ ... need not be elaborate.” Id. at 545, 105 S.Ct. at 1495. “The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546, 105 S.Ct. at 1495. The defendant complied with these guidelines. Defendant’s May 13 letter notified plaintiff of the charges against him, explained the evidence behind the charges, and offered plaintiff a chance to respond" }, { "docid": "14717693", "title": "", "text": "863 F.2d 461, 467 (6th Cir.1988) (same). The fact that plaintiff could obtain more relief under § 1983 does not mean that the remedy for the temporary deprivation of property was constitutionally inadequate. Archuleta, 936 F.2d at 491. See also Lee v. Hutson, 810 F.2d 1030, 1032-1033 (11th Cir.1987) (no pro cedural due process violation despite claim of a biased and sham hearing where the state provided an adequate post-deprivation remedy). e. The Termination With respect to the decision to terminate, plaintiff alleges that the hearing officer (Town Manager Koelsch) was biased, and that the termination decision was effectively made by the Board of Selectmen. There is no evidence that Koelsch had any personal bias or prejudice against Cronin that raises due process concerns. Cf. Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975) (discussing types of bias in decisionmaker so egregious as to pose constitutional difficulty, such as where an adjudicator has a pecuniary interest in the outcome or has been the target of abuse or criticism by the party before him); Schweiker v. McClure, 456 U.S. 188, 197, 102 S.Ct. 1665, 1671, 72 L.Ed.2d 1 (1982) (discussing imputation of bias from an allegedly interested group to hearing officers on whom the group exerts influence). Contrast Police Comm’r of Boston v. Municipal Court of the W. Roxbury Dist., 368 Mass. 501, 507, 332 N.E.2d 901 (1975) (hearing officer not disinterested where counsel represented his wife in acrimonious divorce proceedings). Due process does not “require the state to provide an impartial decisionmaker at the pretermination hearing.” Schaper v. City of Huntsville, 813 F.2d 709, 715 (5th Cir.1987) (police captain complaining that he was terminated after a biased hearing did not state due process claim where there was a right of appeal and post-termination hearing). See, Arnett v. Kennedy, 416 U.S. 134, 170 n. 5, 94 S.Ct. 1633, 1652 n. 5, 40 L.Ed.2d 15 (1974) (“In most cases, the employee’s supervisor is the official best informed about the ‘cause’ for termination. If disqualification is required on the ground that the responsible supervisor could not be" }, { "docid": "11185303", "title": "", "text": "hearing would be required in such circumstances. Here, the asserted reduction in force was directed specifically just at West, and West alleged that the reduction was actually just a subterfuge designed to terminate her without establishing the required cause. Such a termination is potentially stigmatiz ing and a pretermination hearing would provide an important opportunity for her to argue her claim that the reduction in force was a sham. Under very similar facts, the Seventh Circuit concluded that an employee was entitled to a pretermination hearing in Misek v. City of Chicago, 783 F.2d 98 (7th Cir.1986). There, the court stated, [T]he plaintiffs assert that the reorganization was a sham and that their jobs were never abolished. Thus the plaintiffs have sufficiently alleged that they were fired for “cause” to afford them the protections of due process. To hold otherwise would allow government officials to cry “reorganization” in order to circumvent the constitutional and statutory protections guaranteed.... Id. at 101. In light of the Tenth Circuit’s clear precedent regarding protected property interests for employees who can be terminated only for specific reasons and West’s charge that the asserted reduction in force was a sham, we agree with the Seventh Circuit. The fact that Grand County labeled West’s discharge a “reduction in force” does not affect her entitlement to a pretermination hearing when she is asserting that the reduction in force was a sham aimed particularly at her. Cf. Goudeau, 823 F.2d at 1431 (Although not specifically addressing entitlement to a pretermination hearing, it concluded generally that “[w]ithout adequate due process protection, an employee ... can never discover whether the reasons offered for her discharge are true — or are false and a mere subterfuge.”). Thus, West was entitled to a preter-mination hearing. However, the standards the Supreme Court delineated in Louder-mill for pretermination hearings are not very stringent, and we agree with the district court that the meetings and consultations in this case satisfied constitutional mandates. The totality of the circumstances here indicate that West knew in advance of her termination that the county attorney proposed to eliminate her job." }, { "docid": "23664787", "title": "", "text": "would be irrelevant to the claim that pretermination procedural due process was denied because the sufficiency of post-termination protection was not at issue. App. 1005-10. Although due process requires an impartial decisionmaker before final deprivation of a property interest, Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982), it is- not clear that strict impartiality is required at each stage of the process. In situations as the one at hand, there are two stages, pretermination and post-termination, but normally the post-termination proceedings conclusively determine the employee’s status. The pretermination hearing merely serves as “an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495 (citations omitted). We have not decided the specific question of whether, in the employment termination context, an impartial decisionmaker is required at the pretermination hearing. In Rosa v. Resolution Trust Corp., 938 F.2d 383, 396-97 (3d. Cir.), cert. denied, 502 U.S. 981, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991), however, we touched upon a similar issue in another context. Rosa involved a pension plan of a bank placed under the conservator-ship of the Resolution Trust Corporation (the “RTC”). At first, the RTC decided to continue the plan and assumed payment obligations. But after two contribution payments, the RTC decided to halt contributions and it sent out notices that the plan was to be terminated in two months. The beneficiaries of the plan sued. Under the Financial Institutions Reform and Recovery Enforcement Act, however, certain of the plaintiffs’ claims for monetary relief had to be presented first to the RTC for review. The plaintiffs argued that this claims procedure violated due process because the RTC was biased as it had a financial interest in the determination of their claims. We held that the alleged bias did not violate due process because, after exhaustion of the RTC claims procedure, the plaintiffs would have the post-deprivation option of obtaining a de novo court evaluation" }, { "docid": "5695132", "title": "", "text": "cross-appeal is necessary. We turn to Kelly’s procedural due process challenge. In determining whether Kelly’s discharge met the minimum requirements of procedural due process, it is appropriate to analyze the issue in two stages: pretermination procedural requirements and post-termination procedural requirements. Addressing first the preter-mination requirements, we note that the district court properly looked for guidance to Thurston v. Dekle, 531 F.2d 1264, 1273 (5th Cir.1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). Thurston held that, if adequate pretermination process is provided, a governmental employer may postpone until after dismissal a nonprobationary employee’s opportunity to obtain a full evidentiary hearing. With respect to pretermination process, the Thurston court held: Where a governmental employer chooses to postpone the opportunity of a nonpro-bationary employee to secure a full-evi-dentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision. 531 F.2d at 1273 (footnote omitted). The district court, noting the Thurston preter-mination requirements of written notice and opportunity to respond in writing, held that any deviation from the Thurston requirements was de minimus. We need not decide whether the Thur-ston pretermination requirements of written notice and opportunity to respond in writing were mandatory and inflexible. It is now clear that Thurston must be read in light of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. -, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). In Loudermill, the Court noted that “the pretermination ‘hearing,’ though necessary, need not be elaborate.” Id. at-, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. “ ‘[Something less' than a full evidentiary hearing is sufficient prior to adverse administrative action.” Id. With respect to the pretermination procedural protection afforded a tenured public employee, the Court held: The essential requirements of due process ... are notice and an opportunity to respond." }, { "docid": "9334371", "title": "", "text": "Loudermill, Walker was a civil servant who, under City regulations, could be terminated only for cause. She therefore had a property interest in her employment that entitled her to due process protection. We next consider the degree of protection to which she was entitled. Louder-mill held that where public employment has due process protection, a hearing is required before termination takes effect. See id. at 542, 105 S.Ct. at 1493. Both sides agree that Walker received a preter-mination hearing on November 27, 1985. Walker contends, however, that Louder-mill also requires an impartial decision-maker and claims that the decisionmaker at her pretermination hearing did not so qualify- Since Loudermill, other circuits have not required that the decisionmaker in a preter-mination hearing be impartial, so long as due process is provided in a post-termination hearing. See, e.g., Duchesne v. Williams, 849 F.2d 1004 (6th Cir.1988) (no due process violation where allegedly bi ased city manager held pretermination hearing for chief building inspector, but Michigan law provided for a full post-termination hearing), cert. denied, 489 U.S. 1081, 109 S.Ct. 1535, 103 L.Ed.2d 840 (1989); Schaper v. City of Huntsville, 813 F.2d 709 (5th Cir.1987) (no due process violation where decisionmakers at preter-mination stage were allegedly biased, but plaintiff was offered a post-termination hearing before a different body). We agree that the failure to provide an impartial decisionmaker at the pretermination stage, of itself, does not create liability, so long as the decisionmaker at the post-termination hearing is impartial. As will be seen, the City denied Walker due process at her post-termination hearing. Therefore, the City cannot escape liability by relying on the summary judgment which eliminated the pretermination claim. It is unnecessary further to consider the pretermination claim. The due process error was in the City’s failure to provide due process at Walker’s post-termination hearing. II. Post-termination Hearing The allegedly defective pretermination proceeding could have been cured by a due process post-termination hearing. But the City failed to provide due process at Walker’s post-termination hearing. Walker had appealed her discharge to the City’s Personnel Board. The Personnel Board conducted evidentiary hearings and found" }, { "docid": "18255369", "title": "", "text": "532, 538-39, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). As an employee with a property interest under the Due Process Clause, Levine was entitled to have a hearing before his lay off to allow him to present his side of the story. See Clements, 69 F.3d at 331-32; Loudermill, 470 U.S. at 542-43, 105 S.Ct. 1487. Defendants refused to provide a hearing. The Director of Human Resources’ offer to meet with Levine to discuss lay off procedure, and the random five-minute encounter between Levine and the Director, failed to give Levine a meaningful opportunity to respond to the lay off decision. See Clements, 69 F.3d at 331-32. Thus, Levine’s due process rights were violated by the failure to provide a pretermination hearing. See id.; Loudermill, 470 U.S. at 542-45, 105 S.Ct. 1487. Because Levine’s due process rights were violated, it was not improper for the district court to order a full eviden-tiary hearing to remedy the violation. See Brady v. Gebbie, 859 F.2d 1543, 1551 (9th Cir.1988) (stating that the appropriate remedy for the deprivation of due process rights is to order the process which was due). The Supreme Court has held that an employee with a property interest is entitled to a limited pretermination hearing which is to be followed by a more comprehensive post-termination hearing. Loudermill, 470 U.S. at 547, 105 S.Ct. 1487. Levine was entitled to a full post-termination hearing because there was no way to give Levine the process that he had been due, which was an opportunity to respond before the termination occurred. Cf. Loudermill, 470 U.S. at 547 n. 12, 105 S.Ct. 1487 (noting that the adequacy of pretermination and post-termination hearings are interrelated and that the scope of one affects the scope of the other). Thus, it was reasonable for the district court to order that a full evidentiary hearing be held. See id. at 547, 105 S.Ct. 1487. It was also not improper for the district court to order that the hearing be held before a neutral third-party. This court has held that for post-termination hearings an impartial decisionmaker is required. Walker" }, { "docid": "11185306", "title": "", "text": "requirements of Louder-mill. Powell, 891 F.2d at 1459. In addition, prior to termination, West also consulted with the Commissioners regarding her rights as a permanent employee. These actions establish that she received both notice and an opportunity to be heard. For these reasons, we affirm the district court’s decision that West received an adequate pretermination hearing. (2) Post-termination Hearing “Because the post-termination hearing is where the definitive fact-finding oc curs, there is an obvious need for more formal due process protections at that point.” Id. at 1458. We agree with the district court that West received an adequate post-termination hearing. West appeared before the Commissioners for a grievance hearing. She was represented by counsel, and she presented testimony and witnesses on her behalf. Specifically, she sought to establish that the reduction in force was a subterfuge. To support this contention, she offered former County Attorney Benge’s testimony that a full-time secretary was necessary and her own testimony that two individuals are now doing the work that she previously did alone. The Commissioners denied relief on the grounds that West did not present any substantive evidence regarding her allegation that she was terminated because of the election of a new County Attorney. West argues that her post-termination grievance hearing was deficient on three bases: (1) she was not given the opportunity to confront her accusers or to challenge their evidence; (2) the decisionmakers were not impartial; and (3) the Commissioners based their decision on ex parte communications. We reject these claims. First, West complains that she did not have an opportunity to confront and cross-examine witnesses. “While not necessary in every case, ‘procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.’ ” Walker v. United States, 744 F.2d 67, 70 (10th Cir.1984) (footnote and citations omitted); see, e.g., Adams v. Sewell, 946 F.2d 757, 765 (11th Cir.1991) (“This court has emphasized the importance of cross-examination in due process analysis; post-termination proceedings have been held inadequate because a terminated employee ‘had no opportunity to confront and cross-examine his accuser in the presence of" }, { "docid": "23664789", "title": "", "text": "of their claims. 938 F.2d at 397. Our holding in Rosa is consistent with the approaches taken by other circuits in resolving this issue in the employment termination context. In McKinney v. Pate, cited by the district court, a county official challenged the procedures of his termination, alleging that the Board of County Commissioners, who made the preliminary decision to terminate his employment, “was preordained to find against him, regardless of the evidence.” McKinney, 20 F.3d at 1561. The court of appeals in banc, stated that “[a] demonstration that the decisionmaker was biased ... is not tantamount to a demonstration that there has been a denial of procedural due process.” McKinney, 20 F.3d at 1562. The court reasoned that the employee was entitled also to a post-termination hearing and would not be deprived of due process “unless and until the state refuses to provide due process.” Id. The court held: [ l]n the case of an employment termination case, ‘due process [does not] require the state to provide an impartial decision-maker at the pre-termination hearing. The state is obligated only to make available “the means by which [the employee] can receive redress for the deprivations.” ’ Schaper v. City of Huntsville, 813 F.2d 709, 715-16 (5th Cir.1987) (quoting Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981)) (footnote omitted). McKinney, 20 F.3d at 1562. Other courts of appeals have come to this same conclusion in cases where hearings are provided both before and after dismissal. See, e.g., Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir.1991) (“failure to provide an impartial decisionmaker at the pretermination stage, of itself, does not create liability, so long as the decisionmaker at the post-termination hearing is impartial”); Duchesne v. Williams, 849 F.2d 1004, 1005 (6th Cir.1988) (in banc) (Loudermill does not require a “neutral and impartial decisionmaker” at the pretermination hearing but only “a right of reply before the official responsible for the discharge”), cert. denied, 489 U.S. 1081, 109 S.Ct. 1535, 103 L.Ed.2d 840 (1989). Likewise, the Court of Appeals for the Fifth Circuit reached" }, { "docid": "5999767", "title": "", "text": "before the meeting took place. “Due process ... does not require predecision hearings. It only requires an opportunity to be heard prior to the termination of benefits.” Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir.) (emphasis added), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988). Here, the pre-termination meeting was timely, and it served as the initial check against mistaken decisions that Louder-mill requires. Even if Appellants decided to terminate Sutton before the meeting occurred, they might well have reconsid ered had he persuasively denied responsibility for the Facebook posting. Sutton further suggests he was denied pre-termination due process because Appellants were biased decisionmakers due to his discovery of deficiencies in the Funeral Science program. An impartial decisionmaker is not required at the pretermination stage so long as the employee has access to post-termination proceedings before an impartial adjudicator. See Locurto v. Safir, 264 F.3d 154, 174 (2d Cir. 2001) (collecting cases); Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988) (en banc) (post-termination proceedings “serve to ferret out bias, pretext, deception and corruption by the employer in discharging the employee”). Appellants’ participation in the pre-termination meeting did not violate Sutton’s clearly established due-process rights, as he had the opportunity to contest the termination, and level his charges of bias and pretext, by invoking the University’s internal post-termination grievance procedures. Finally, Sutton contends that he received inadequate pre-termination process because the University’s post-termination grievance procedures were constitutionally inadequate. Sutton waived the right to complain about the adequacy of the post-termination procedures by not invoking those procedures. See, e.g., Krentz, 228 F.3d at 904; Riggins, 790 F.2d at 711-12; Demming v. Hous. & Redev. Auth., 66 F.3d 950, 953-54 (8th Cir.1995). It is true that “failure to exhaust postdeprivation remedies does not affect [an employee’s] entitlement to predeprivation process.” Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 936 (8th Cir.2012), quoting Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th Cir. 2009). It is also true that “the existence of post-termination procedures is relevant to the necessary scope" }, { "docid": "10119267", "title": "", "text": "1 (6th Cir.1980), this court held that a school board’s preter-mination grievance procedure was constitutionally inadequate because the teacher whose contract was terminated “was compelled to appear before the same administrators who had investigated the incidents and recommended her dismissal. Since factfinding on the accusations was necessary, due process requires that the same administrators who investigated the matter not determine her guilt or innocence.” ****** [But] there is no construction of the facts of this case that could support the view that Williams was not too biased to give Duchesne a fair hearing. Even if he is accorded “the presumption of honesty and integrity in policymakers with decisionmaking power,” Hortonville, 426 U.S. at 497 [96 S.Ct. at 2316], the record clearly shows the existence of personal animosity between Williams and Du-chesne such that Williams’ subsequent impartiality was, at a minimum, suspect. Cf. Taylor v. Hays [Hayes], 418 U.S. 488, 501 [94 S.Ct. 2697, 2704, 41 L.Ed.2d 897] (1974). This, taken together with Williams’ in-depth involvement in every stage of the proceedings, forbids the conclusion that Williams was a suitable hearing officer. Williams was involved in some of the incidents that formed the basis for Duchesne’s termination, and he was principally responsible for accusing, trying, and deciding the issues at Du-chesne’s hearing. Under the circumstances, the hearing provided to Du-chesne was constitutionally deficient. Duchesne, No. 86-1017, slip op. at 11-14. Thus, neither the district court’s disposi-tive opinion nor this court’s panel decision held that Duchesne’s due process rights were violated because he was not given a pretermination hearing before a “neutral decisionmaker” or an “impartial judge.” Both courts acknowledged that the hearing officer need not be totally impartial. The learned district judge held, instead, after carefully reviewing the undisputed facts of Mr. Williams’ relationship with Mr. Du-chesne, and particularly his role as “accuser, witness, and judge,” that “the evidence” is “that the plaintiff received an unfair and partial hearing,” and that “[i]n this situation, due process demands that someone other than [Mr. Williams] conduct the hearing.” (Emphasis added.) This court’s panel found that the record supported the district court’s conclusion that" }, { "docid": "9334372", "title": "", "text": "S.Ct. 1535, 103 L.Ed.2d 840 (1989); Schaper v. City of Huntsville, 813 F.2d 709 (5th Cir.1987) (no due process violation where decisionmakers at preter-mination stage were allegedly biased, but plaintiff was offered a post-termination hearing before a different body). We agree that the failure to provide an impartial decisionmaker at the pretermination stage, of itself, does not create liability, so long as the decisionmaker at the post-termination hearing is impartial. As will be seen, the City denied Walker due process at her post-termination hearing. Therefore, the City cannot escape liability by relying on the summary judgment which eliminated the pretermination claim. It is unnecessary further to consider the pretermination claim. The due process error was in the City’s failure to provide due process at Walker’s post-termination hearing. II. Post-termination Hearing The allegedly defective pretermination proceeding could have been cured by a due process post-termination hearing. But the City failed to provide due process at Walker’s post-termination hearing. Walker had appealed her discharge to the City’s Personnel Board. The Personnel Board conducted evidentiary hearings and found that Walker had been discharged without cause. This decision was relayed to the City Manager, who was responsible for the final administrative decision on Walker’s termination. Meanwhile, Walker filed this action in the district court, and a staff attorney from the City Attorney’s office was assigned to defend the City. The staff attorney filed a motion in federal court to dismiss this action while, at the same time, she was preparing her recommendation for the City Manager on the Personnel Board’s termination decision. A few days after filing her motion in federal court, the staff attorney recommended to the city manager that the Personnel Board’s decision be rejected and that Walker’s termination be approved. Walker contends that the City denied her due process when it caused the same staff attorney to function both as the City’s attorney in the federal court case and as the decisionmaker in Walker’s post-termination hearing. We agree. The special verdict form correctly asked the jury to decide whether the City Manager, the nominal decisionmaker, had made an independent decision on" }, { "docid": "23664790", "title": "", "text": "The state is obligated only to make available “the means by which [the employee] can receive redress for the deprivations.” ’ Schaper v. City of Huntsville, 813 F.2d 709, 715-16 (5th Cir.1987) (quoting Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981)) (footnote omitted). McKinney, 20 F.3d at 1562. Other courts of appeals have come to this same conclusion in cases where hearings are provided both before and after dismissal. See, e.g., Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir.1991) (“failure to provide an impartial decisionmaker at the pretermination stage, of itself, does not create liability, so long as the decisionmaker at the post-termination hearing is impartial”); Duchesne v. Williams, 849 F.2d 1004, 1005 (6th Cir.1988) (in banc) (Loudermill does not require a “neutral and impartial decisionmaker” at the pretermination hearing but only “a right of reply before the official responsible for the discharge”), cert. denied, 489 U.S. 1081, 109 S.Ct. 1535, 103 L.Ed.2d 840 (1989). Likewise, the Court of Appeals for the Fifth Circuit reached the same conclusion via an application of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and held that even if allegations of bias and conspiracy on the part of the decisionmaker were true, “the state cannot be expected to anticipate such unauthorized and corrupt conduct.” Schaper v. City of Huntsville, 813 F.2d 709, 714-16 (5th Cir.1987). We find these cases convincing. First, as the Supreme Court has held, “[t]he constitutional [procedural due process] violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). The Zinermon Court held that part of the process that the State may offer to avoid constitutional violations is a remedy for erroneous deprivations. Id. Thus, a discharged employee cannot claim in federal court that he has been denied due process because his pretermination hearing was held by a biased individual where he has not taken" } ]

[ { "docid": "22097369", "title": "", "text": "trial be granted the defendant.” It was accompanied by a “memorandum” reciting the history of the case and that “This Court, while the appeal was pending, reconsidered the grounds urged by the defendant in support of his motion- for a new trial. It is our opinion upon this reconsideration that in the interest of justice a new trial should be granted the defendant.” It assigned no more particular ground for the order. Memolo was thereupon released from the penitentiary on bail. On the Government’s petition to the Court of Appeals for writs directing that the order be vacated, Memolo was allowed to intervene. Judge Smith also answered asserting that his order “was in accordance with the mandate of this Court and was authorized by the Rules of Criminal Procedure of 1946, effective March 21, 1946, particularly Rule 33 thereof.” He referred to his memorandum but did not further elucidate his reasons for granting a new trial. On consideration, the court below sitting en banc denied the petition for writs of mandamus and prohibition. 156 F. 2d 642. Two of the five judges dissented. The mandate which the appellate court returned to the District Court was in the conventional and long-used form adapted to all appealed causes and contained no special directions peculiar to this case. It was neutral on the issues here raised and nothing in its terms either expressly authorized or prohibited the order for new trial. The power of the District Court to make such an order turns entirely on the Rules of Criminal Procedure cited and relied upon by Judge Smith. Rule 33 provides: \"New Trial. The court may grant a new trial to a defendant if required in the interest of justice. If trial was by the court without a jury the court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant" } ]

[ { "docid": "7649928", "title": "", "text": "the third prong of the plain-error test. If it were, as Williamson urges, \"the Government’s burden to establish harmless error beyond a reasonable doubt, our conclusion today might be different.” United States v. Gonzalez-Rodriguez, 621 F.3d 354, 367 (5th Cir.2010). . As with the Sixth Amendment Massiah issue, counsel did not raise the issue at trial. The government has not claimed that Williamson has forfeited the issue for appeal. Consequently, it is contextually before us on plain-error review. It founders on plain-error review’s first prong, and we end our analysis of the issue there. . Federal Rule of Criminal Procedure 33 provides: (a) Defendant’s Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment. (b) Time to File. (1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case. (2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty. . The government argues that Williams is “very close authority.\" In Williams, however, the district court found that the defendant had no right to counsel for his Rule 33 motion only after considering “the motion as one ... with no appeal pending.” Williams, 1998 WL 786200, at *1; see also id. at *2 (“[A]s we have noted, the right to counsel extends only through the first appeal as of right, and it does not extend to collateral review. At the time Williams’s new trial motion was heard, his direct appeal had been decided and his conviction and sentence had been affirmed.”). In this case, Williamson filed his Rule 33 motion shortly after the Supreme Court remanded the case" }, { "docid": "2285355", "title": "", "text": "could undoubtedly appeal the case and raise it in the appellate court. Once a sentence of imprisonment was imposed, the defendant could bring a petition under 28 U.S.C. § 2255 raising this issue. United States v. Hamilton, 97 F.Supp. 123 (S.D.W.Va.1951). However, we can see no reason to compel these additional steps in order to grant the defendant an adjudication of his constitutional rights. Procedural technicalities are not to be used to deprive an accused of his vital constitutional rights unless the defendant deliberately abuses those rules. Cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). This defendant did not. His motion was presented promptly after the recent Supreme Court decisions were discovered. We can ask no more of any defendant. Consequently, we hold that in view of the special circumstances in this case, the defendant’s motion, which raises a defense under F.R.Crim.P. 12(b)(1), was presented within “a reasonable time thereafter.” The fact that the motion was mislabeled as a motion for new trial or arrest of judgment does not preclude our consideration of it at this time. In accord with the foregoing opinion, IT IS THE ORDER OF THE COURT that the government’s motion to dismiss the defendant’s motions for new trial and arrest of judgment be, and the same is hereby, GRANTED as to the first and third grounds urged in support of those motions, and DENIED as to the second and fourth grounds. Accordingly, IT IS THE FURTHER ORDER OF THE COURT that the defendant’s opposition to the government’s motion to dismiss be, and the same is hereby, DENIED as to the first and third grounds urged in support of the defendant’s motions for new trial and arrest of judgment, and GRANTED as to the second and fourth grounds. IT IS THE FURTHER ORDER OF THE COURT that a hearing on the second and fourth grounds supporting the defendant’s motions be, and the same is hereby, SET for 2:00 P.M. on Wednesday, September 18,1968. The defendant has already submitted his brief on the two remaining issues. However, in light of the several" }, { "docid": "5328632", "title": "", "text": "the Court has an obligation under the cases cited by both sides, to grant a new trial. I hereby grant a new trial. I grant the motion to set aside the verdict in this particular case. I do so because I think it is in the interests of justice. I have also a discretion here to act; and I am acting under that discretion to preserve the integrity of the jury system in this courtroom. The Government’s petition for writ of mandamus followed. II. We are of the view that, given the timely new trial motion based upon the parking lot information, there can be no serious contention that the District Court was without jurisdiction to entertain and to act upon it. United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947), upon which the Government relies heavily, provides an instructive contrast. There a District Court denied a timely motion for a new trial and entered a judgment of conviction, which was affirmed on appeal. After the defendant began serving his sentence, the District Court reconsidered the grounds previously urged in support of the motion and sua sponte granted a new trial. The Government sought mandamus, which was denied by the Court of Appeals, but the Supreme Court reversed, holding that a timely motion pursuant to Rule 33 was a prerequisite to the District Court’s power to award a new trial. In the case before us, the parking lot issue was timely raised by a motion for a new trial made within the seven-day period as extended. The proceedings with regard to that motion were regular in nature, and are not claimed to be otherwise by petitioner, whose strictures go only to its result. There was also sufficient logical connection between the ground raised by the defendants in their papers seeking a new trial and the result reached by the District Court to satisfy any doubt that jurisdiction existed. When timely presented with the parking lot issue, the District Court was empowered, if it were so advised, to grant a new trial “in the interest of" }, { "docid": "23267666", "title": "", "text": "MATTHES, Circuit Judge. This is an appeal from an order of the district court denying Judson E. Holt’s motions under 28 U.S.C.A. § 2255 and Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C.A. Appellant has been twice found guilty by jury for narcotic violations under Title 26 U.S.C.A. §§ 4741(a), 4742(a) and 4744(a). His first conviction was reversed by this court because of a prejudicial misstatement of evidence by the United States Attorney and the court. Holt v. United States, 8 Cir., 267 F.2d 497. On appeal, based upon an allegedly erroneous admission of defendant’s oral confession, the second conviction was affirmed. Holt v. United States, 8 Cir., 280 F.2d 273, cert. den. 365 U.S. 838, 81 S.Ct. 750, 5 L.Ed.2d 747. After his second conviction and while his appeal therefrom was pending in this court, appel lant, alleging “newly discovered evidence,” filed a motion for new trial under Rule 33, Federal Rules of Criminal Procedure. This motion was dismissed by the trial court for lack of jurisdiction. An appeal from this order was taken and after the filing of our opinion affirming the second conviction, and denial of petition for certiorari by the United States Supreme Court, by appropriate order of March 15, 1961, we vacated the order of the district court dismissing the motion for new trial and remanded the cause for purpose of consideration of the motion. On April 27, 1961, appellant filed a motion under 28 U.S.C.A. § 2255 to vacate the judgment and sentence and, in the alternative, reiterated his claim for new trial under Rule 33 upon the ground of “newly discovered evidence.” The trial court afforded appellant a full hearing on these motions, appellant was present at the hearing, was represented by court-appointed counsel, and testified at great length in support of his allegations. Succinctly stated, defendant urged two grounds for relief—a) that he was not properly represented by counsel, and b) that a government witness testified falsely during the trial. The court considered all points raised by defendant and concluded that he had had a fair trial, been ably represented by" }, { "docid": "22097370", "title": "", "text": "2d 642. Two of the five judges dissented. The mandate which the appellate court returned to the District Court was in the conventional and long-used form adapted to all appealed causes and contained no special directions peculiar to this case. It was neutral on the issues here raised and nothing in its terms either expressly authorized or prohibited the order for new trial. The power of the District Court to make such an order turns entirely on the Rules of Criminal Procedure cited and relied upon by Judge Smith. Rule 33 provides: \"New Trial. The court may grant a new trial to a defendant if required in the interest of justice. If trial was by the court without a jury the court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 5 days after verdict or finding of guilty or within such further time as the court may fix during the 5-day period.” The first sentence of this rule is declaratory of the power to grant a new trial “in the interest of justice” instead of for reasons catalogued as they might have been. The generality of the reasons assigned by Judge Smith for the order in question is all that is required. But this sentence says nothing of the time within which the court must act or of the effect of an intervening appeal and affirmance on the power. Such time provisions as there are relate to filing of motions by the defendant. The last sentence of the rule, which puts a five-day limit on motions for new trial on any ground other than newly-discovered evidence, was suggested by the law as it stood before adoption of the new Rules. Generally speaking," }, { "docid": "19871103", "title": "", "text": "the district court had no power to grant a new trial, conditional or otherwise, nor did he have the power to enlarge the time for filing a motion for a new trial. Id. Clearly, the court in Brown was concerned with district court orders made outside of the statutorily-mandated period in which a new trial motion could be made. See also Beran, 546 F.2d at 1319 n. 1. In Newman, 456 F.2d at 669-72, the court found it improper for a district court to substitute its own ground for a new trial where defendant had not raised the same in a timely-filed new trial motion. Again, the thrust of the opinion had to do with ,the district court acting sua sponte outside of the jurisdictional seven-day period. The court makes reference to the 1966 amendment and the Advisory Committee cited above. The court concluded: On the facts presented by this record, where the court grants a new trial more than four-and-a-half months after the seven day period has expired for alleged error in the. charge to which the defendant has made no objection, a grant of a new trial on such ground not asserted in a motion made in conformity with the Rules, but articulated sua sponte by the trial court is action by the court “on its own motion,” and being beyond the jurisdiction of the court, is ineffective. Id. at 672. Again; while this case more strongly supports the government’s position, it still turns on the untimely aspect of the court’s action rather than its sua sponte nature. See also, Vanterpool, 377 F.2d at 34-36. However, in Green, 414 F.2d at 1175, the District of Columbia Circuit ruled that a district court judge could not sua sponte order a new trial and that such action is a nullity. The seminal United States Supreme Court case on this issue and the one cited in the Advisory Committee’s notes of Rule 33 is United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). In Smith, the Court analyzed the pre-1966 version of Rule 33. Again, much" }, { "docid": "13638338", "title": "", "text": "judgment. The district judge in Twenty One Kings eventually denied the motion, but he allowed it to be argued and considered it on its merits on the theory that so long as a party makes a timely motion which states good grounds for relief by motion, the court will entertain it and grant relief if appropriate. We agree. The “motion for reconsideration of judgment”, with its supporting memorandum in this ease should be viewed as a motion for a new trial. In his memorandum in support of the “motion for reconsideration”, the defendant argued persuasively that the plaintiffs introduced insufficient evidence at the first trial to prove that the defendant had a duty to inspect for snow and ice accumulation over exterior doors, or that the defendant breached this duty. This supporting memorandum can be construed as advancing the argument that the trial judge had made a “manifest error of law” in entering judgment for the plaintiffs. When we look at its substance instead of its form, counsel’s memorandum manages, barely, to present a good claim of manifest error of law. The trial judge’s grant of a new trial therefore can be affirmed. Under a narrow reading of the rules, a court might hold that Wright was not entitled to a new trial because his memorandum in support of his correctly designated motion for a new trial did not repeat the grounds asserted in his memorandum in support of his misdirected “motion for reconsideration of judgment”. But such an application would defeat the purpose of Rule 59, which allows the trial judge substantial authority to grant new trials in the interests of justice. We do not reach the alternative ground urged by the defendant in support of the order granting a new trial under Rule 59(d). The trial court did not act within ten days after the entry of the first judgment, and did not give the parties an opportunity to be heard on the proposal to grant a new trial on grounds other than those asserted in the motion. The plaintiffs therefore question whether the defendant can rely upon" }, { "docid": "9754070", "title": "", "text": "based on (or only on) newly discovered evidence was not warranted. .Even if Scroggins's motion were based only on newly discovered evidence, because it was timely made within the Rule 33(b)(2) time limit, the district court likely still should have considered the interest of justice in its analysis. See United States v. Ugalde, 861 F.2d 802, 808 (5th Cir.1988) (commenting that when a motion for new trial under Rule 33 is made within seven days of the verdict, \"courts will grant the motion, even if based on newly discovered evidence, whenever it is in the interest of justice to do so”) (internal quotations and citations omitted). . We do not suggest, however, that the district court would have necessarily exercised its discretion to grant a new trial if it had considered the motion in the interest of justice, nor do we suggest that the interest of justice required a new trial. Those are matters to be addressed in the first instance by the district court. . On this issue, the parties dispute the applicability of United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). In Smith, the district court stated in granting a motion for new trial: \" ‘This Court ... reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is our opinion upon this reconsideration that in the interest of justice a new trial should be granted the defendant.' \" Id. at 1331. The district court \"assigned no more particular ground for the order.” Id. When the government filed a petition with the court of appeals for writs directing that the order be vacated, the district judge responded by referring to the memorandum in which it granted the motion \"but did not further elucidate his reasons for granting a new trial.” Id. The court of appeals denied the writs. The Supreme Court noted that \"[t]he generality of the reasons assigned by [the district court] for the order in question is all that is required.” Id. at 1332. However, the Court reversed the court of appeals and" }, { "docid": "1244988", "title": "", "text": "not to take action beyond such time limitation was correct because any order entered would have been without effect.” Nevertheless, the Circuit Court considered those reserved issues and found them devoid of merit. The Turner Motion and Memorandum in Support thereof (dated December 26, 1978) specifically stated that he was raising a Governmental misconduct issue. This specific allegation is not comparable to the type of omnibus reservation clause involved in Hamilton. In United States v. Newman, 456 F.2d 668, the Government successfully obtained a Writ of Mandamus to compel the District Court to vacate its order granting a new trial. The Court of Appeals said that the order was not entered for reasons raised by the Defendant in his timely Motion for a New Trial but for reasons raised by the District Court on its own Motion. The Circuit Court said that District Courts do not have the power under Rule 33 to grant a new trial on their own Motion. The Rule specifically provides the Court, “on motion of the defendant ” may grant a new trial if required in the interests of justice. Clearly, Newman is distinguishable. The Court is not ruling upon a Motion for a New Trial on grounds it raises, but rather upon a ground raised by Turner, in his December 26, 1978 memorandum. Other Third Circuit District Court cases seem to be distinguishable for similar reasons. In United States v. Mathews, 335 F.Supp. 157, 166 (W.D.Pa.1971), a Motion for New Trial suffered from having an omnibus reservation clause like the one in Hamilton. Also, United States v. Kane, 319 F.Supp. 527, 528 (E.D.Pa.1970) involved raising an additional ground without proper extension. United States v. Dabney, 393 F.Supp. 529, 548 (E.D.Pa.1975) found an additional ground improper because it was raised orally (although raised in the appropriate time for granting an extension) and, therefore, defective under Fed.R.Crim.P. 47. What is involved here is a request and statement of grounds made in writing. Accordingly, we believe that Turner has complied with the requirements of Rule 33 as the Motion relates to Governmental misconduct. Even in the Third" }, { "docid": "1921527", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: We consider procedural questions arising from the relatively common phenomenon of new appellate counsel replacing trial counsel while certain motions remain pending in the trial court. In this ease, defendant Lance Edgar Owen appeals from a judgment of conviction, entered on November 29, 2005 by the United States District Court for the Southern District of New York (Robert P. Patterson, Judge), on two counts of distribution and possession of marijuana and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846, and sentencing Owen principally to 60 months’ incarceration. However, on February 3, 2006, the District Court granted Owen a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the basis of newly discovered evidence, and Owen was released on bond soon thereafter. Owen remains released on bond today. One week after ordering a new trial, the District Court appointed new counsel pursuant to the Criminal Justice Act. See 18 U.S.C. § 3006A(c) (“The United States magistrate judge or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings.”). The government appealed the Rule 33 order granting a new trial. Another panel of our Court reversed because the evidence in question — an allegedly exculpatory statement made at sentencing by co-defendant Paul Samuels — was not, by definition, “newly discovered.” United States v. Owen, 500 F.3d 83, 89-90 (2d Cir.2007). Our opinion noted in a footnote, however, that the absence of a motion to sever Owen’s trial from Samuels’ trial “manifest[s] a lack of diligence [on trial counsel’s part] in procuring the admission of Samuels’ testimony.” Id. at 91 n. 5. A full description of the underlying facts and procedural history of this case is contained in our earlier opinion. See id. at 84-87. Although the District Court based its Rule 33 decision solely on newly discovered evidence, Owen’s handwritten Rule 33 motion for a new trial- — submitted pro se before the assignment of new counsel— also relied on alternate grounds, including ineffective assistance" }, { "docid": "22993693", "title": "", "text": "at 256, 16 S.Ct. at 293. Here, the opinion delivered by this court at the time of rendering its mandate analyzes and reaches only the propriety of the JMOL of non-infringement. Given that willfulness and claim iden-ticality were deemed moot (unless the JMOL of non-infringement were reversed), our mandate to “reinstate the jury verdict” could only have referred to the reinstatement of the verdict of infringement, the only issue appealed. It is incorrect to conclude that we decided issues not only undecided on the merits by the trial court because they were moot, and thus on appeal unripe, but also neither presented to us nor discussed in our opinion, nor necessary to our disposition of the appeal. The scope of our review, and our power to review, was limited to the sole order that was appealed. That order was limited to infringement. C. Objective analysis of the mandate Cases with analogous fact situations are instructive in determining the scope of the mandate. In Conway, a case cited and relied upon by the district court, the plaintiff moved for a new trial on two separate grounds. 644 F.2d at 1060. The district court granted the motion based on the first ground only. The court of appeals reversed, discussing only the first ground. After receipt of the mandate from the first appeal, judgment was entered for the defendant based on the jury verdict. The plaintiffs then moved again for a new trial, re-urging the ground previously ignored by the district court. The district court granted this motion and the court of appeals affirmed. On this second appeal, the court noted that, on the first appeal, “the appellate court discussed and passed upon only the first ground urged by the plaintiffs’ motion for a new trial. Nor did the briefs of the parties at that appeal rely upon or discuss the second ground ” Id. at 1061. The court held that the law of the case doctrine applies only to those issues decided expressly or by necessary implication. Id. at 1062. The Court of Appeals for the Fifth Circuit also stated: The law" }, { "docid": "22550205", "title": "", "text": "additional reasons were added to the effect that the damages were excessive; that the court erred in ruling upon evidence, and in refusing to give .requested instructions. The motion concluded thus: \"Wherefore, the defendant prays that the verdict of the jury herein, and the judgment rendered and entered thereon, be set aside/ and a judgment rendered and entered herein in favor of the defendant; and defendant further. prays in the alternative that in the event the Court refuses to set aside the verdict rendered for the plaintiff and the judgment in favor of the plaintiff ren-. dered and entered on said verdict, and refuses to render 'and' enter judgment herein in favor of the defendant notwithstanding said verdict and judgment, that the court set aside said verdict- and- judgment on behalf of the plaintiff and grant the defendant a new trial herein.” The District Court rendered an opinion holding that there was no evidence of negligence on the part of the co-employe and that, therefore, judgment should be entered for the defendant. The plaintiff filed a motion praying that, to limit the issues on appeal, the court’s order and judgment specifically show the grounds on which relief was granted, and “in order that the judgment of the appellate court may be final,” the motion for a new trial be overruled. The court, however,-.- merely . entered a judgment for the defendant notwithstanding the verdict. The plaintiff filed a second motion reciting that, at a hearing upon .his earlier motion, the defendant had resisted the contention that the court should rule on the motion for a new trial as.that motion “passed out of existence and consideration on the granting of its motion for a judgment notwithstanding the verdict.” The plaintiff further recited that the court did not pass upon the plaintiff’s contentions but simply entered a judgment in favor of the defendant, and renewed his prayer that the court consider the motion, modify the judgment to specify the grounds upon which relief was granted, and dispose of all issues raised by both motions. This was denied. The plaintiff appealed to the" }, { "docid": "23684510", "title": "", "text": "becoming final, the United States filed an appeal to this court on March 3, 2005 (docketed here as No. 05-3293). On August 9, 2005, however, the district judge issued a decision addressing Williams’s motion for reconsideration and specifying that the prosecution’s failure to “turn over a letter which could readily be construed as a promise of nonprosecution in exchange for the testimony of two key government witnesses” did indeed result in a constitutional violation that entitled the defendant to a new trial. The district court also concluded, however, that Williams’s motion for judgment of acquittal should be denied “because the jury’s guilty verdicts are supported by substantial and competent evidence.” The government then filed a second appeal to this court that challenged only the propriety of the August 9 ruling (docketed here as No. 05-4160). The two matters have now been consolidated for appeal. United States v. Williams, Nos. 05-3293, 05-4160, 2006 WL 3203748, at *1-*2 (6th Cir. Nov.6, 2006) (brackets and ellipses removed). With regard to the government’s first appeal, this court concluded that the district court erred in holding that Blakely and Booker mandated a new trial for Williams. Id. at *4. The rule set forth by the Supreme Court in Blakely and Booker was not implicated because “the district court never imposed sentence upon [Williams],” and the rule does not otherwise apply to “the jury’s resolution of the issues presented to it.” Id. Concerning the government’s second appeal, this court determined that because the district court lacked jurisdiction to enter the August 9, 2005 order, that order “was a legal nullity.” Id. at *7. The panel noted, however, that “because the district court originally denied without prejudice the defendant’s motion for a new trial based upon alleged Brady/Giglio violations, Williams remains free to file any subsequent collateral attack upon his convictions that he deems proper.” Id. In conclusion, the court reversed the grant of a new trial in Case Number 05-3293, vacated the judgment in Case Number 05-4160, reinstated Williams’s convictions, and remanded the matter for sentencing. Id. When the district court granted Williams’s motions for a" }, { "docid": "22550206", "title": "", "text": "a motion praying that, to limit the issues on appeal, the court’s order and judgment specifically show the grounds on which relief was granted, and “in order that the judgment of the appellate court may be final,” the motion for a new trial be overruled. The court, however,-.- merely . entered a judgment for the defendant notwithstanding the verdict. The plaintiff filed a second motion reciting that, at a hearing upon .his earlier motion, the defendant had resisted the contention that the court should rule on the motion for a new trial as.that motion “passed out of existence and consideration on the granting of its motion for a judgment notwithstanding the verdict.” The plaintiff further recited that the court did not pass upon the plaintiff’s contentions but simply entered a judgment in favor of the defendant, and renewed his prayer that the court consider the motion, modify the judgment to specify the grounds upon which relief was granted, and dispose of all issues raised by both motions. This was denied. The plaintiff appealed to the Circuit Court of Appeals, which decided that the District Court erred in holding the evidence insufficient to make a case for a jury. It reversed the judgment' and remanded the cause with instructions to the District Court to enter judgment on the. verdict in favor of the plaintiff. It overruled, the defendant’s contention that the case should be remanded with leave to the trial court to dispose of the motion for a new trial. The importance of a decision by this court, respecting the proper practice under Rule 50 (b), and a conflict of decisions, moved us to grant certiorari. The Circuit Court of Appeals said: “Strictly speaking the motion did not pray for relief in the ‘alternative,’ giving the court a choice between two propositions either of which he might grant in the first instance. The court was asked to rule on the motion for a new trial only ‘in the event’ he ‘refuses to set aside the verdict . . . and judgment . . . and refuses to enter judgment herein in" }, { "docid": "5328633", "title": "", "text": "sentence, the District Court reconsidered the grounds previously urged in support of the motion and sua sponte granted a new trial. The Government sought mandamus, which was denied by the Court of Appeals, but the Supreme Court reversed, holding that a timely motion pursuant to Rule 33 was a prerequisite to the District Court’s power to award a new trial. In the case before us, the parking lot issue was timely raised by a motion for a new trial made within the seven-day period as extended. The proceedings with regard to that motion were regular in nature, and are not claimed to be otherwise by petitioner, whose strictures go only to its result. There was also sufficient logical connection between the ground raised by the defendants in their papers seeking a new trial and the result reached by the District Court to satisfy any doubt that jurisdiction existed. When timely presented with the parking lot issue, the District Court was empowered, if it were so advised, to grant a new trial “in the interest of justice.” The court was so inclined, and it is immaterial that it also considered and relied on Ms. Jones’ failure to reveal that she once had an account at Madison National Bank. The court stated emphatically that it would grant a new trial “[i]f there is an intentional non-disclosure, as there is here. ...” The court’s explicit assessment of the non-disclosure of the parking lot information as material and intentional or reckless makes clear that no more than that single breach of the integrity of the voir dire process was needed to persuade it to order a new trial. Petitioner contends that the District Court was grievously in error in its appraisal, from the record before it, of the impact upon the essential fairness of the trial of Ms. Jones’ failure to answer. This argument is beside the point, for this is a petition for mandamus. As the Supreme Court put beyond doubt in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), it is not the office of mandamus" }, { "docid": "22854922", "title": "", "text": "a separate motion after n. o. v. is granted, his grounds for a new trial or voluntary nonsuit. Clearly, where he retains his verdict in the trial court and the defendant appeals, plaintiff should have the opportunity which 50 (d) affords him to press those same or different grounds in the court of appeals. And .obviously judgment for defendant-appellant should not be ordered where the plaintiff-appellee urges grounds for a nonsuit or new trial which should more appropriately be addressed to the trial court. But these considerations do not justify an ironclad rule that the court of appeals should never order dismissal or judgment for defendant when the plaintiff’s verdict has been set aside on appeal. Such a rule would not serve the purpose of Rule 50. to speed litigation and to avoid unnecessary retrials. Nor do any of our cases mandate such a rule. Indeed, in Pence v. United States, 316 U. S. 332, we affirmed a Court of Appeals decision reversing the trial court’s failure to grant judgment n. o. v. And in New York, N. H. & H. R. Co. v. Henagan, 364 U. S. 441, this Court itself directed entry of judgment for a verdict loser whose proper request for judgment n. o. v. had been wrongly denied by the District Court and by the Court of Appeals. In view of these cases, the language of Rule 50 (d), and the statutory grant of broad appellate jurisdiction, we think a more discriminating approach is preferable to the inflexible rule for which the petitioner contends. There are, on the one hand, situations where the defendant’s grounds for setting aside the- jury’s verdict raise questions of subject matter jurisdiction or disposi-tive issues of law which, if resolved in defendant’s favor, must necessarily terminate the litigation. The court of appeals may hold in an employer’s suit against a union, for example, that the case is within the exclusive jurisdiction of the National Labor Relations Board, or in a libel, suit, that the defendant was absolutely privileged t\"o publish the disputed statement. In such situations, and others like them, there" }, { "docid": "14010619", "title": "", "text": "In re Melvin, 546 F.2d 1, 2 (1st Cir. 1976); In re United States, 348 F.2d 624, 626 (1st Cir. 1965). The Supreme Court’s decision in United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, rehearing denied, 332 U.S. 784, 68 S.Ct. 28, 92 L.Ed. 368 (1947), gives some guidance in the application of this standard. There the defendant filed a timely motion for new trial attacking his conviction on a number of grounds, none of which was the existence of newly discovered evidence. The motion was denied. In an appeal that challenged, among other issues, the denial of the Rule 33 motion, the conviction was affirmed. After mandate had issued, and although no motion was pending, the district court sua sponte1 ordered a new trial. The government sought mandamus. On appeal the Supreme Court ruled that a new trial could not have been granted because no new evidence was alleged and the five day period set by Rule 33 for motions on any other grounds had long since passed. Since the defendant would not have been entitled to a new trial had he requested it, the court reasoned that the district court was without power to order it of its own motion. Mandamus issued. Smith is distinguishable from this case in that here a Rule 33 motion was pending and the allegation of new evidence enabled the district court to entertain it after the five day period. But alleging evidence which so clearly fails to meet any of the standards governing the granting of a new trial is in substance little different from alleging no evidence at all. We are aware that several factors found to impel the use of mandamus in other cases are absent here. We have no reason to believe that the error below is frequently repeated, Bauman v. United States District Court, 557 F.2d 650, 660 (9th Cir. 1977), and we recognize that standards for granting a new trial on the basis of newly discovered evidence are well established. See United States v. Mello, supra, 469 F.2d at 358; United States" }, { "docid": "9754071", "title": "", "text": "United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). In Smith, the district court stated in granting a motion for new trial: \" ‘This Court ... reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is our opinion upon this reconsideration that in the interest of justice a new trial should be granted the defendant.' \" Id. at 1331. The district court \"assigned no more particular ground for the order.” Id. When the government filed a petition with the court of appeals for writs directing that the order be vacated, the district judge responded by referring to the memorandum in which it granted the motion \"but did not further elucidate his reasons for granting a new trial.” Id. The court of appeals denied the writs. The Supreme Court noted that \"[t]he generality of the reasons assigned by [the district court] for the order in question is all that is required.” Id. at 1332. However, the Court reversed the court of appeals and issued writs vacating the order for new trial, holding that a district court could not grant a motion for new trial after its initial denial of the motion had been affirmed on appeal. Id. at 1333-34. The Supreme Court in Smith also stated that \"[n]ew trials ... may be granted for eiror occurring at the trial or for reasons which were not part of the court's knowledge at the time of judgment.” Smith, 67 S.Ct. at 1333 (emphasis added). We conclude that Smith provides no clear guidance on the present issue. . The Tenth Circuit’s opinion does not specify when the motion for new trial was filed; however, the court specifically found \" 'that in the interest of justice the defendant should be granted a new trial.’ ” Patterson, 41 F.3d at 579. Thus, presumably the motion was filed within seven days of the verdict. . In the context of false testimony, the Second Circuit explained in Sanchez that \"[e]ven in a case where perjury clearly has been identified, however, we have indicated our reluctance" }, { "docid": "19871104", "title": "", "text": "to which the defendant has made no objection, a grant of a new trial on such ground not asserted in a motion made in conformity with the Rules, but articulated sua sponte by the trial court is action by the court “on its own motion,” and being beyond the jurisdiction of the court, is ineffective. Id. at 672. Again; while this case more strongly supports the government’s position, it still turns on the untimely aspect of the court’s action rather than its sua sponte nature. See also, Vanterpool, 377 F.2d at 34-36. However, in Green, 414 F.2d at 1175, the District of Columbia Circuit ruled that a district court judge could not sua sponte order a new trial and that such action is a nullity. The seminal United States Supreme Court case on this issue and the one cited in the Advisory Committee’s notes of Rule 33 is United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). In Smith, the Court analyzed the pre-1966 version of Rule 33. Again, much of the Court’s analysis had to do with the timeliness of the district court’s action and not with its power to act. The Court rejected the notion that a district court could, at any time, change its mind and grant a new trial while the defendant would be limited to the time limits found in the Rule (at the time five days and two years, respectively). Id. at 473-474, 67 S.Ct. at 1332-33. As reasons for this construction of the statute, the Court first noted that allowing the trial court to change its mind at any time would create issues as to the finality of judgments for appellate purposes since a district court could deny a motion for a new trial and then, after appeal, grant a new trial for its own reasons, thus rendering the previously-elicited appellate opinion “advisory”. Id. at 474, 67 S.Ct. at 1333. Second, the Court reasoned that unlimited discretion in this area raised a potential constitutional issue of double jeopardy. In the Court’s own words, [mjoreover, it would indeed be" }, { "docid": "22854921", "title": "", "text": "which might justify the grant of a new trial. 337 U. S., at 808-809. The opinions in the above cases make it clear that an appellate court may not order judgment n. o. v. where the verdict loser has failed strictly to comply with-the procedural requirements of Rule 50 (b), -or where the record reveals a new trial issue which has not been resolved. Part of the Court’s concern has been to protect the rights of the party whose jury verdict has been set aside on appeal and who may have valid grounds for a new trial, some or all of which should be passed upon by the district court, rather than the court of appeals, because of the trial judge’s first-hand knowledge of witnesses, testimony, and issues — because of his “feel” for the overall case. These are very valid concerns to which the court of appeals should be constantly alert. Where a defendant moves for n. o. v. in the trial court, the plaintiff may present, in connection with that motion or with a separate motion after n. o. v. is granted, his grounds for a new trial or voluntary nonsuit. Clearly, where he retains his verdict in the trial court and the defendant appeals, plaintiff should have the opportunity which 50 (d) affords him to press those same or different grounds in the court of appeals. And .obviously judgment for defendant-appellant should not be ordered where the plaintiff-appellee urges grounds for a nonsuit or new trial which should more appropriately be addressed to the trial court. But these considerations do not justify an ironclad rule that the court of appeals should never order dismissal or judgment for defendant when the plaintiff’s verdict has been set aside on appeal. Such a rule would not serve the purpose of Rule 50. to speed litigation and to avoid unnecessary retrials. Nor do any of our cases mandate such a rule. Indeed, in Pence v. United States, 316 U. S. 332, we affirmed a Court of Appeals decision reversing the trial court’s failure to grant judgment n. o. v. And in" } ]

[ { "docid": "2473535", "title": "", "text": "based on the plain language of the Act, that Congress’ intent is ambiguous, thereby leading to analysis under Chevron’s second step, may it resort to analysis of the relevant legislative history. A majority of the courts (including one circuit court of appeals) which have addressed the issue of whether a public employee may bring his or her ADA claim under Title II of the ADA have held that it is permissible for such employees to do so. See, e.g., Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998); Dominguez v. City of Council Bluffs, Iowa, 974 F.Supp. 732, 736-37 (S.D.Iowa 1997); Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1309-10 (S.D.Tex.1996); Dertz v. City of Chicago, 912 F.Supp. 319, 323-25 (N.D.Ill.1995); Ethridge v. Alabama, 847 F.Supp. 903, 906-07 (M.D.Ala.1993); Petersen v. University of Wisconsin Bd. of Regents, 818 F.Supp. 1276, 1278 (W.D.Wis.1993). However, there are also courts that have held that employment disputes, whether arising out of private or public employment, must be brought under Title I of the ADA. See, e.g., Zimmerman v. State of Oregon Dep’t of Justice, 983 F.Supp. 1327, 1329 (D.Or.1997); Decker v. University of Houston, 970 F.Supp. 575, 578 (S.D.Tex.1997), aff'd, 159 F.3d 1355 (5th Cir.1998) (unpublished order). Although it respects the weight of the contrary authority, the Court is unable to join the courts that have held that a cause of action for employment discrimination may be brought under Title II of the ADA. The Court begins by looking at the language of § 202 of Title II, which sets forth the prohibition against discrimination by a public entity. Therein, public entities are prohibited from excluding from or denying benefits of “services, programs, or activities” by reason of a person’s disability. See 42 U.S.C. § 12132. They are further and broadly prohibited from subjecting individuals with disabilities to “discrimination.” See id. Perhaps a strict reading of “services, programs, or activities” could include employment. Furthermore, the blanket prohibition in § 202 against discrimination would," } ]

[ { "docid": "2804074", "title": "", "text": "employment discrimination is simply contrary to the applicable rules and precepts of statutory construction, as well as to all prior caselaw in the circuit courts. For these reasons, I dissent. . Saylor v. Ridge, 989 F.Supp. 680 (E.D.Pa.1998); Magee v. Nassau County Medical Center, 27 F.Supp.2d 154 (E.D.N.Y.1998); Fobar v. City Dearborn Heights, 994 F.Supp. 878 (E.D.Mich.1998); Alberti v. City and County of San Francisco, 32 F.Supp.2d 1164 (N.D.Cal.1998); Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130 (D.Mass.1998); Winfrey v. City of Chicago, 957 F.Supp. 1014 (N.D.Ill.1997); Dominguez v. City of Council Bluffs, 974 F.Supp. 732 (S.D.Iowa 1997); Hernandez v. City of Hartford, 959 F.Supp. 125 (D.Conn.1997); Roe v. County Comm’n of Monongalia, 926 F.Supp. 74 (N.D.W.Va.1996); Graboski v. Giuliani, 937 F.Supp. 258 (S.D.N.Y.1996); Wagner v. Texas A & M Univ., 939 F.Supp. 1297 (S.D.Tex.1996); Davoll v. Webb, 943 F.Supp. 1289 (D.Colo.1996); Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill.1995); Doe v. County of Milwaukee, 871 F.Supp. 1072 (E.D.Wis.1993); Eisfelder v. Michigan Dep’t of Natural Resources, 847 F.Supp. 78 (W.D.Mich.1993); Finley v. Giacobbe, 827 F.Supp. 215 (S.D.N.Y.1993); Petersen v. University of Wisconsin Bd. of Regents, 818 F.Supp. 1276 (W.D.Wis.1993); Ethridge v. State of Alabama, 847 F.Supp. 903 (M.D.Ala.1993). Two of the three district court opinions agreeing with Zimmerman have already been overruled: Bledsoe v. Palm Beach Soil and Water Conservation Dist., 942 F.Supp. 1439 (S.D.Fla.1996), rev’d, 133 F.3d 816 (11th Cir.1998), and Decker v. University of Houston, 970 F.Supp. 575 (S.D.Tex.1997). Decker is no longer good law, given the Fifth Circuit’s contrary opinion in Holmes. Thus, Patterson v. Illinois Dep’t of Corrections, 35 F.Supp.2d 1103 (C.D.Ill.1999) provides the slim reed of support on which Zimmerman rests. In addition to these published cases, 4 out of 6 unpublished district court decisions disagree with Zimmerman. . The input-output distinction was also adopted by a district court in Texas, see Decker, 970 F.Supp. at 578, but that decision was subsequently implicitly overruled by the Fifth Circuit when it applied Title II to discrimination in employment. See Holmes v. Texas A & M University, 145 F.3d 681, 684 (5th Cir.1998)." }, { "docid": "10988786", "title": "", "text": "have brought Count I under Title I of the ADA. However, he chose to bring Count I under Title II. In Petersen v. Univ. of Wis. Bd. of Regents, the court was faced with a similar issue when the plaintiff brought a claim under Title II that could have been brought under Title I. 818 F.Supp. 1276 (W.D.Wis.1993). In a non-binding, yet well-reasoned opinion, the court held that the regulations found in 29 C.F.R. part 1630, to which 28 C.F.R. § 35.140 refers, impose only the substantive requirements of the Title I employment provisions on Title II defendants rather than imposing Title I procedural requirements on Title II plaintiffs. Id. at 1280. The court reasoned that 29 C.F.R. part 1630 does not contain any reference to exhaustion of administrative remedies or any other procedural requirements to be imposed on plaintiffs. Instead the regulations that address processing administrative complaints under Title I of the Act are contained in a separate section of the Equal Employment Opportunity Commission (hereafter E.E.O.C.) regulations. Id. (construing 29 C.F.R. Part 1641). It is unlikely that if the DOJ had meant the procedural requirements of Title I to apply to claims of employment discrimination brought under Title II, it would have referred to only the part of the E.E.O.C. regulations governing substantive requirements imposed on defendants and neglected to refer to the part of the regulations that address procedural requirements imposed on plaintiffs. Id. We agree with the Petersen court that the procedural requirements of Title I do not apply to Title II plaintiffs. Therefore, the relevant enforcement provisions in this case are those outlined in Title II, pursuant to which Dertz brought Count I. Title II adopts the remedies, rights and procedures the Rehabilitation Act of 1973 (29 U.S.C.A. § 794(a)), which does not require exhaustion of administrative remedies and allows a plaintiff to go directly to federal court. See 42 U.S.C.A. § 12133 (outlining enforcement provisions of Title II); B. Doe, M.D. v. St. Joseph’s Hosp. of Fort Wayne, 788 F.2d 411, 426 (7th Cir.1986) . Thus, the courts that have ruled on this issue" }, { "docid": "22586433", "title": "", "text": "II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis added). Whether that provision encompasses employment discrimination is a difficult question that has split the circuits. Compare Zimmerman, 170 F.3d 1169, with Bledsoe v. Palm Beach County Soil & Water Conserv. Dist., 133 F.3d 816 (11th Cir.1998) (holding that Title II does extend to employment discrimination). While we do not pass on that question here, plaintiffs’ claim that Title II covers employment discrimination is certainly not frivolous or immaterial. Thus, the federal courts possess subject matter jurisdiction to consider the claim. Our conclusion is supported by the fact that the many courts addressing the question have not treated it as one of subject matter jurisdiction. Rather, the issue of whether Title II covers employment discrimination has been raised and considered on motions to dismiss for failure to state a claim, see, e.g., Zimmerman, 170 F.3d at 1171; Patterson v. Illinois, 35 F.Supp.2d 1103, 1104 (C.D.Ill.1999); Alberti v. City & County of San Francisco Sheriff’s Dept., 32 F.Supp.2d 1164, 1167 (N.D.Cal.1998), overruled by Zimmerman, 170 F.3d 1169; Petersen v. University of Wisconsin Bd. of Regents, 818 F.Supp. 1276, 1276-77 (W.D.Wis.1993); cf. Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 42 (2d Cir.1997) (whether ADA applied to zoning), or motions for summary judgment, see, e.g., Bledsoe, 133 F.3d at 818; Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d. 130, 134 (D.Mass.1998); Decker v. University of Houston, 970 F.Supp. 575, 576-77 (S.D.Tex.1997); Hernandez v. City of Hartford, 959 F.Supp. 125, 132-33 (D.Conn.1997); Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1308 (S.D.Tex.1996); cf. Johnson v. City of Saline, 151 F.3d 564, 567, 569 (6th Cir.1998) (whether Title II applied to contracting). Because the issue is not jurisdictional and because Denver did not raise it below or on appeal, we expressly decline to decide whether Title II covers employment discrimination." }, { "docid": "15288806", "title": "", "text": "discrimination by any such entity.” Id. § 12132. The district court granted summary judgment to the defendant on this claim, holding that: 1) Title II of the ADA does not encompass employment practices; and 2) even if Title II covered employment, the LTD plan would fall under the “safe harbor” provision established by Congress for certain state insurance programs, id. § 12201(c). In its safe harbor ruling, the district court stated that because there was a rational basis for the distinction in benefits, the classification did not violate the state anti-discrimination statute. The court made no ruling on whether the classification violated the state constitution. Currie, 147 F.Supp.2d at 33-38. The GIC agrees with both of the district court’s conclusions. Neither question is easily decided. 1. Title II coverage The question of whether challenges to employment practices are cognizable under Title II has been considered by two of our sister circuits, and by several trial courts within this circuit, with divergent results. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1173-74 (9th Cir.1999) (not cognizable), cert. denied, 531 U.S. 1189, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820-22 (11th Cir.1998) (cognizable); Downs v. Mass. Bay Transp. Auth., 13 F.Supp.2d 130, 134-36 (D.Mass.1998) (cognizable); Motzkin v. Trs. of Boston Unin, 938 F.Supp. 983, 996 (D.Mass.1996) (not cognizable); see also McKibben v. Hamilton County, 215 F.3d 1327 (6th Cir.2000) (per curiam) (unpublished table decision) (noting split, but proceeding on merits where coverage not challenged by defendant). Title I of the ADA, 42 U.S.C. §§ 12112-12117 (1994), expressly covers the employment practices of both private and public entities. Id. § 12112. The district court believed that the clear language of Title I indicated that Title I was the sole avenue for bringing employment claims, and that the clear language of Title II indicated that Title II was limited to so-called “outputs” of a public agency. Currie, 147 F.Supp.2d at 34-35. Specifically, the court found that the second clause of Title II, which mandates that qualified individuals not “be" }, { "docid": "23111960", "title": "", "text": "reasons that we already have discussed, we do not think that this reading of the statutory text is correct. . See, e.g., Holmes v. Texas A & M Univ., 145 F.3d 681, 683-84 (5th Cir.1998); Doe v. University of Maryland Med. Sys., 50 F.3d 1261, 1264-65 & n. 9 (4th Cir.1995); Motto v. City of Union City, No. 95-5678, 1997 WL 816509, at *8 (D.N.J. Aug. 27, 1997); Davoll v. Webb, 943 F.Supp. 1289, 1297 (D.Colo.1996); Dertz v. City of Chicago, 912 F.Supp. 319, 323-25 (N.D.Ill.1995), reconsidered in part on other grounds, 1997 WL 85169 (Feb. 24, 1997); Doe v. County of Milwaukee, 871 F.Supp. 1072, 1074 (E.D.Wis.1995); Eisfelder v. Michigan Dept. of Natural Resources, 847 F.Supp. 78, 83-84 (W.D.Mich.1993); Finley v. Giacobbe, 827 F.Supp. 215, 219 n. 3 (S.D.N.Y.1993). . See, e.g., Hernandez v. City of Hartford, 959 F.Supp. 125, 133 (D.Conn.1997) (\"On its face. Title II prohibits discrimination in ‘public services'. A plain reading of the section does not reveal whether Title II covers employment discrimination addressed more specifically in Title I. The regulations under and the legislative history of ADA Title II make it clear, however, that § 12132 prohibits employment discrimination by public entities on the basis of disability.”) (footnote and citation omitted); Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1309 (S.D.Tex.1996) (\"Although it is not apparent from the plain language of § 12132, the regulations issued by the Department of Justice make it clear that the prohibition against discrimination by public entities includes employment discrimination.’’). See also Winfrey v. City of Chicago, 957 F.Supp. 1014, 1023 n. 7 (N.D.Ill.1997) (similar); Silk v. City of Chicago, No. 95 C 0143, 1996 WL 312074, *10 (N.D.Ill. June 7, 1996) (similar); Benedum v. Franklin Township Recycling Center, No. 95-1343, 1996 WL 679402, at *5 (W.D.Pa. Sept 12, 1996) (similar); Petersen v. Univ. of Wisconsin Bd. of Regents, 818 F.Supp. 1276, 1278 (W.D.Wis.1993) (similar). . See, e.g., Bledsoe, 133 F.3d at 821; Alberti, 32 F.Supp.2d at 1169-70; Downs, 13 F.Supp.2d at 135; Ethridge, 847 F.Supp. at 906. . See, e.g., Saylor v. Ridge, 989 F.Supp. 680," }, { "docid": "21280154", "title": "", "text": "II, whose application to state defendants the Eleventh Amendment does not categorically bar. Id. at 4 n. 29. Defendants respond that this Court lacks subject matter jurisdiction to hear plaintiffs ADA claims, because Title II does not apply to employment discrimination, Defs.’ Mem. Supp. Mot. Dismiss [hereinafter Defs.’ Mem.] at 13-16, and because plaintiffs suit under Title II is barred by the Eleventh Amendment, id. at 7-13. Defendants argue further that even if Title I’s confidentiality provisions apply, plaintiff has failed to state a claim under those provisions. Id. at 16-23. The law is unsettled as to whether Title II of the ADA covers employment discrimination. Without answering the question itself, the Supreme Court has acknowledged a split of opinion among the circuits. Garrett, 531 U.S. at 360 n. 1, 121 S.Ct. 955 (“[N]o party has briefed the question whether Title II of the ADA ... is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject.... The Courts of Appeals are divided on this issue ----”). Nor has the Second Circuit offered an answer. See Perry v. State Ins. Fund, 83 Fed.Appx. 351, 354 n. 1 (2d Cir.2003) (“There remain questions regarding ... whether Title II ADA violations can be based on employment discrimination”) (unpublished); Mullen v. Rieckhoff, No. 98-7019, 1999 WL 568040, *1, 1999 U.S.App. LEXIS 18150, at *2 (2nd Cir.1999) (“[P]laintiff rightfully points to a split of authority over whether an employment discrimination plaintiff may avoid the ADA’s requirement of an EEOC charge by filing under Title II of that Act [W]e need not reach that question.”). The two circuits that have confronted the question directly have reached opposite results. Compare Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (holding that Title II covered employment discrimination), with Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1183-84 (9th Cir.1999) (holding that it did not). Meanwhile, “[t]he Fourth, Fifth and Tenth Circuits appear to have assumed, without deciding, that Title II applies to [discrimination in] public employment.” Clifton v. Georgia Merit Sys., 478" }, { "docid": "22586434", "title": "", "text": "to state a claim, see, e.g., Zimmerman, 170 F.3d at 1171; Patterson v. Illinois, 35 F.Supp.2d 1103, 1104 (C.D.Ill.1999); Alberti v. City & County of San Francisco Sheriff’s Dept., 32 F.Supp.2d 1164, 1167 (N.D.Cal.1998), overruled by Zimmerman, 170 F.3d 1169; Petersen v. University of Wisconsin Bd. of Regents, 818 F.Supp. 1276, 1276-77 (W.D.Wis.1993); cf. Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 42 (2d Cir.1997) (whether ADA applied to zoning), or motions for summary judgment, see, e.g., Bledsoe, 133 F.3d at 818; Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d. 130, 134 (D.Mass.1998); Decker v. University of Houston, 970 F.Supp. 575, 576-77 (S.D.Tex.1997); Hernandez v. City of Hartford, 959 F.Supp. 125, 132-33 (D.Conn.1997); Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1308 (S.D.Tex.1996); cf. Johnson v. City of Saline, 151 F.3d 564, 567, 569 (6th Cir.1998) (whether Title II applied to contracting). Because the issue is not jurisdictional and because Denver did not raise it below or on appeal, we expressly decline to decide whether Title II covers employment discrimination. Instead, we assume that it does and turn to the issues properly on appeal. III. A. Jury Instructions Denver asserts that the district court erred in refusing to give two of its proposed instructions, and that several of the jury instructions given misstated the law. We review the district court’s decision whether to give a particular instruction for an abuse of discretion. See Allen v. Minnstar, 97 F.3d 1365, 1368 (10th Cir.1996). We review de novo “whether, as a whole, the instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards.” Id. “Instructional error requires reversal only if the error is determined to have been prejudicial, based on a review of the record as a whole.” Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1236 (10th Cir.1999) (internal quotation marks omitted). 1. “Qualifted Individual with a Disability” Denver contends the district court erred in instructing the jury that plaintiffs were “qualified individuals with disabilities” under the ADA if they could perform the" }, { "docid": "21085907", "title": "", "text": "of Justice, 170 F.3d 1169 (9th Cir.1999) (holding that Title II does not apply to employment claims) with Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.) cert. denied, 525 U.S. 826, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998) (holding that employment claim may be brought under Title II). In light of the parties’ failure to focus their arguments on Title II, the concessions made at oral argument, and particularly because we cannot be certain as to whether Lavia even brought suit under Title II in the first place, we decline to address or decide here any issue with respect to Title II of the ADA. . That directive states: [e]xtemal enforcement may occur and complaints regarding violations of disability-related laws may be filed with and processed through federal agencies such as the EEOC or the United States Department of Justice or state entities such as the Pennsylvania Human Relations Commission in accordance with applicable federal or state acts or regulations. Commonwealth of Pennsylvania, Governor's Office, Management Directive 205.25 Amended, (reproduced in Appendix for Appellee) (emphasis added). . Indeed, courts that have considered whether a state may be sued in federal court under the ADA agree that the ADA satisfies this first prong of the Seminole Tribe test. See, e.g., Stevens v. Illinois Dep't of Transportation, 210 F.3d 732 (7th Cir.2000); Erickson v. Board of Governors of State Colleges and Univ. for Northeastern Ill. Univ., 207 F.3d 945 (7th Cir.2000); Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir.1999) cert. granted in part, Univ. of Ala. at Birmingham Bd. of Trustees v. Garrett, -U.S. -, 120 S.Ct. 1669, 146 L.Ed.2d 479 (2000); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.1999) cert. dismissed U.S. -, 120 S.Ct. 1265, 146 L.Ed.2d 215 (2000); Martin v. Kansas, 190 F.3d 1120 (10th Cir.1999); Muller v. Costello, 187 F.3d 298 (2nd Cir.1999); Cooley v. Mississippi Dep’t of Transp., 96 F.Supp.2d 565 (S.D.Miss.2000); Davis v. Utah State Tax Comm’n, 96 F.Supp.2d 1271 (D.Utah 2000). . 42 U.S.C. § 12101(b) sets forth Congress’ purpose as follows: It is" }, { "docid": "21280155", "title": "", "text": "has the Second Circuit offered an answer. See Perry v. State Ins. Fund, 83 Fed.Appx. 351, 354 n. 1 (2d Cir.2003) (“There remain questions regarding ... whether Title II ADA violations can be based on employment discrimination”) (unpublished); Mullen v. Rieckhoff, No. 98-7019, 1999 WL 568040, *1, 1999 U.S.App. LEXIS 18150, at *2 (2nd Cir.1999) (“[P]laintiff rightfully points to a split of authority over whether an employment discrimination plaintiff may avoid the ADA’s requirement of an EEOC charge by filing under Title II of that Act [W]e need not reach that question.”). The two circuits that have confronted the question directly have reached opposite results. Compare Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (holding that Title II covered employment discrimination), with Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1183-84 (9th Cir.1999) (holding that it did not). Meanwhile, “[t]he Fourth, Fifth and Tenth Circuits appear to have assumed, without deciding, that Title II applies to [discrimination in] public employment.” Clifton v. Georgia Merit Sys., 478 F.Supp.2d 1356, 1363-64 (N.D.Ga.2007) (citing Davoll v. Webb, 194 F.3d 1116, 1130 (10th Cir.1999); Holmes v. Texas A & M Univ., 145 F.3d 681, 684 (5th Cir.1998); Doe v. Univ. of Maryland Med. Sys., 50 F.3d 1261, 1265 (4th Cir.1995)). But the Sixth Circuit has observed, in a case concerning Title III, that the only-portion of the ADA to address employment discrimination is Title I. Id. at 1364 (quoting Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir.1997)). District courts in the Second Circuit have taken divergent approaches. Compare Olson v. New York, No. 04-CV-0419, 2005 U.S. Dist. LEXIS 44929, at *13 (E.D.N.Y. Mar. 9, 2005) (holding that Title II covered employment discrimination); Transp. Workers Union, 342 F.Supp.2d 160 (same); Bloom, 2003 WL 1740528, *11, 2003 U.S. Dist. LEXIS 5290, at *33 (same); Winokur, 190 F.Supp.2d at 449 (same); Magee v. Nassau County Med. Ctr., 27 F.Supp.2d 154, 159 (E.D.N.Y.1998) (same), with Ayantola v. Community Technical Colls, of the State of Connecticut, No. 3:05CV957, 2007 WL 963178, *2, 2007 U.S. Dist. LEXIS" }, { "docid": "58040", "title": "", "text": "v. Texas A & M University, 939 F.Supp. 1297 (S.D.Tex.1996), the court determined that a tenured professor could bring a Title II claim against the University when he was not rehired to his same position following a medical disability leave. In so finding, the court found that Title II obtains its remedies from the Rehabilitation Act, which does not require exhaustion of administrative remedies before filing suit. The court relied upon Ethridge in making its conclusion. In its discussion, the court noted that Title II encompasses employment actions. 939 F.Supp. at 1310.\" The court also discussed the policy anomaly created when Title II does not require exhaustion of administrative remedies. The court stated that Title I and Title II create “separate and distinct enforceable rights.” Id. “Title I addresses primarily the rights of disabled individuals in workplaces, while Title II addresses the rights of disabled citizens vis-a-vis the government.” Id. The court stated that this inconsistency “is undesirable from a policy standpoint;” however, given the DOJ’s regulatory posture, the court would “not fill the gaps in the ADA in an attempt to effectuate a purported Congressional intent that is not entirely evident.” Id. See also Hernandez v. City of Hartford, 959 F.Supp. 125 (D.Conn.1997); Graboski v. Guiliani, 937 F.Supp. 258 (S.D.N.Y.1996); Silk v. City of Chicago, No. 95C0143, 1996 WL 312074 (N.D.Ill. June 7, 1996). In Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill.1995), the court discussed whether plaintiffs must exhaust administrative remedies prior to bringing a claim under Title II of the ADA. The plaintiffs in Dertz were former police officers for the City of Chicago who had been placed on medical leave and were not allowed to return to their former positions. The plaintiffs filed suit under the Rehabilitation Act and Titles I and II of the ADA. The court relied on the district court’s decision in Petersen v. Univ. of Wisconsin Bd. of Regents, 818 F.Supp. 1276 (W.D.Wis.1993), to find that the procedural requirements of Title I do not apply to Title II plaintiffs. Dertz, 912 F.Supp. at 324-25. Because the court found that the plaintiffs" }, { "docid": "10652113", "title": "", "text": "1169, 1173 (9th Cir.1999) (holding that Title II is not applicable to employment discrimination), with Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998) (concluding that employment discrimination claims can be brought pursuant to Title II). Similarly, the district courts within the Second Circuit are divided on the issue. Compare, e.g., Gallagher v. Town of Fairfield, No. 10-CV-1270, 2011 WL 3563160, at *2-3 (D.Conn. Aug. 15, 2011) (holding that Title II does not cover employment discrimination claims); Reddick v. S. Conn. State Univ., No. 10-CV-1118, 2011 WL 1833288, at *2-3 (D.Conn. May 12, 2011) (construing an employment discrimination claim to be brought under Title I, on the assumption that Title II does not cover such claims); Emmons v. City Univ. of N.Y., 715 F.Supp.2d 394, 408 (E.D.N.Y.2010) (holding “that Title I is the exclusive remedy for employment discrimination claims” (emphasis in original)); Melrose, 2009 WL 211029, at *9 (finding that the plaintiffs employment discrimination claims could not be brought pursuant to Title II); Fleming v. State Univ. of N.Y., 502 F.Supp.2d 324, 333-34 (E.D.N.Y.2007) (same), with Transp. Workers Union of Am., Local 100 v. N.Y.C. Transit Auth., 342 F.Supp.2d 160, 175 (S.D.N.Y.2004) (holding that Title II could be used for employment discrimination claims); Winokur v. Office of Court Admin., 190 F.Supp.2d 444, 449 (E.D.N.Y.2002) (same). “When interpreting the terms of a statute, the court ‘generally look[s] first to the plain language ... and interprets] it by its ordinary, common meaning.’ ” Cormier v. City of Meriden, No. 03-CV-1819, 2004 WL 2377079, at *2 (D.Conn. Sept. 30, 2004) (alterations and omissions in original) (quoting Luyando v. Grinker, 8 F.3d 948, 951 (2d Cir.1993)); see also Carcieri v. Salazar, 555 U.S. 379, 387-88, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009) (noting that under “settled principles of statutory construction[,] ... [courts] must first determine whether the statutory text is plain and unambiguous,” and “[i]f it is, [courts] must apply the statute according to its terms”). The Court agrees with the Ninth Circuit’s reasoning that the plain or common meaning of the phrase “the services, programs," }, { "docid": "16897230", "title": "", "text": "claim under Title II of the ADA as well as under Title I. See Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.) (thoroughly examining statutory language of Title II, interpretative regulations promulgated by Department of Justice, and prior case law, and concluding that “Title II of the ADA does encompass public employment discrimination”), cert. denied, — U.S. -, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998); Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130, 134 (D.Mass.1998) (“vast majority of courts” to consider question have held that Title II encompasses employment discrimination); Hernandez v. City of Hartford, 959 F.Supp. 125, 132 (D.Conn.1997) (“[t]he regulations under and the legislative history of ADA Title II make it clear, however, that § 12132 prohibits employment discrimination by public entities on the basis of disability”); Finley, 827 F.Supp. at 219 n. 3 (permitting plaintiffs Title II employment discrimination suit against county hospital to proceed). Unlike Title I, however, Title II does not impose an exhaustion requirement on plaintiff. Bledsoe, 133 F.3d at 824; Finley, 827 F.Supp. at 219 n. 3. Considering plaintiffs disability claims as brought under Title I, the Court finds she has fulfilled the exhaustion requirement. Plaintiffs Complaint alleges she was terminated in 1995 and not rehired in 1996 based on race, disability, and retaliation. .The 1995 charge filed with DHR relating to her termination/rehiring was based on retaliation for having filed a previous administrative complaint in 1991 regarding her disability. Clearly, the exhaustion requirement does not foreclose plaintiff from bringing her termination/failure to rehire claim on a theory of retaliation. Moreover, the 1995 administrative complaint was enough to put the investigative agency, DHR, on notice that plaintiff also contended that her termination resulted, at least indirectly, from her disability. DHR was, or should have been, aware of plaintiffs 1991 complaint charging defendant with disability discrimination. Putting all plaintiffs administrative complaints and amendments together, DHR could reasonably have been expected to expand the scope of the 1995 complaint (which on its face charged retaliatory termination for filing a previous disability discrimination charge) to include a" }, { "docid": "16897229", "title": "", "text": "I of the ADA. See 42 U.S.C. § 12117 (adopting for claims brought under Title I of the ADA the exhaustion requirement set forth for Title VII claims); Bent v. Mt. Sinai Med. Ctr., 882 F.Supp. 353, 355 (S.D.N.Y.1995) (administrative exhaustion requirement applies to Title I ADA claims); Finley v. Giacobbe, 827 F.Supp. 215, 219 n. 3 (S.D.N.Y.1993) (same). The rule is different for claims brought pursuant to Title II of the ADA. Title II of the ADA bars discrimination by reason of disability by any public entity. See Pub.L. No. 101-36, §§ 201-03, 104 Stat. 337 (1990) (codifed in 42 U.S.C. §§ 12131-33). “Public entities” include, inter alia, any instrumentality of a state or local government. 42 U.S.C. § 12131(1). The Court takes judicial notice that NCMC is a public entity. See Castelli v. Nassau County Med. Ctr., 244 A.D.2d 379, 664 N.Y.S.2d 94, 95 (2d Dep’t 1997) (noting that Nassau County Medical Center is a facility operated by the County of Nassau). An employee of a public entity may bring an employment discrimination claim under Title II of the ADA as well as under Title I. See Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.) (thoroughly examining statutory language of Title II, interpretative regulations promulgated by Department of Justice, and prior case law, and concluding that “Title II of the ADA does encompass public employment discrimination”), cert. denied, — U.S. -, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998); Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130, 134 (D.Mass.1998) (“vast majority of courts” to consider question have held that Title II encompasses employment discrimination); Hernandez v. City of Hartford, 959 F.Supp. 125, 132 (D.Conn.1997) (“[t]he regulations under and the legislative history of ADA Title II make it clear, however, that § 12132 prohibits employment discrimination by public entities on the basis of disability”); Finley, 827 F.Supp. at 219 n. 3 (permitting plaintiffs Title II employment discrimination suit against county hospital to proceed). Unlike Title I, however, Title II does not impose an exhaustion requirement on plaintiff. Bledsoe, 133 F.3d at" }, { "docid": "16462045", "title": "", "text": "the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Title II defines the term “qualified individual with a disability” as “an individual with a disability who ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). In a footnote in the Garrett opinion, the Supreme Court recognized, but declined to answer the question whether Title II of the ADA, dealing with “services, programs, or activities of a public entity” ... is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e.g., Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” ...). 531 U.S. at 360, n. 1, 121 S.Ct. 955. The Courts of Appeals for the Fifth, Ninth and Eleventh Circuits have answered this question with conflicting results. See Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (Title II inapplicable to employment discrimination), cert, denied, 531 U.S. 1189, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.) (Title II applicable to employment discrimination), cert, denied, 525 U.S. 826, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998); Decker v. Univ. of Houston, 970 F.Supp. 575 (S.D.Tex. 1997) (Title II inapplicable to employment discrimination), affd 159 F.3d 1355 (5th Cir.1988). In the Second Circuit, district court decisions have also reached conflicting results. Cf. Syken v. State of New York, 2003 WL 1787250 (S.D.N.Y. Apr.2, 2003) (Title II inapplicable), with Winokur v. Office of Court Admin., 190 F.Supp.2d 444, 449 (E.D.N.Y.2002) (Title II applicable). Following careful review of the statutory scheme and language of the ADA, as well as existing case law on the subject," }, { "docid": "21085906", "title": "", "text": "has not decided this issue as yet. . We limit our review to whether Congress validly abrogated the States' Eleventh Amendment immunity under Title I of the ADA. We do not consider whether Congress validly abrogated the States' immunity under either Title II of the ADA or under the Rehabilitation Act because the parties conceded at oral argument that these Acts were not the subject of the appeal. Moreover, the record does not disclose whether the Commonwealth receives federal funding such that it would be subject to the Rehabilitation Act. We are similarly unable to address whether Title II of the ADA was a valid exercise of Congress’ § 5 power. Lavia’s complaint does not specify under which Title his claim is being brought, nor does the District Court’s opinion reveal whether its decision applied to Title II in addition to Title I. Additionally, there is an underlying dispute among the circuits as to whether a public employee is even entitled to sue under both Title I and Title II. Cf. Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169 (9th Cir.1999) (holding that Title II does not apply to employment claims) with Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.) cert. denied, 525 U.S. 826, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998) (holding that employment claim may be brought under Title II). In light of the parties’ failure to focus their arguments on Title II, the concessions made at oral argument, and particularly because we cannot be certain as to whether Lavia even brought suit under Title II in the first place, we decline to address or decide here any issue with respect to Title II of the ADA. . That directive states: [e]xtemal enforcement may occur and complaints regarding violations of disability-related laws may be filed with and processed through federal agencies such as the EEOC or the United States Department of Justice or state entities such as the Pennsylvania Human Relations Commission in accordance with applicable federal or state acts or regulations. Commonwealth of Pennsylvania, Governor's Office, Management Directive 205.25" }, { "docid": "58041", "title": "", "text": "in the ADA in an attempt to effectuate a purported Congressional intent that is not entirely evident.” Id. See also Hernandez v. City of Hartford, 959 F.Supp. 125 (D.Conn.1997); Graboski v. Guiliani, 937 F.Supp. 258 (S.D.N.Y.1996); Silk v. City of Chicago, No. 95C0143, 1996 WL 312074 (N.D.Ill. June 7, 1996). In Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill.1995), the court discussed whether plaintiffs must exhaust administrative remedies prior to bringing a claim under Title II of the ADA. The plaintiffs in Dertz were former police officers for the City of Chicago who had been placed on medical leave and were not allowed to return to their former positions. The plaintiffs filed suit under the Rehabilitation Act and Titles I and II of the ADA. The court relied on the district court’s decision in Petersen v. Univ. of Wisconsin Bd. of Regents, 818 F.Supp. 1276 (W.D.Wis.1993), to find that the procedural requirements of Title I do not apply to Title II plaintiffs. Dertz, 912 F.Supp. at 324-25. Because the court found that the plaintiffs were not required to exhaust their administrative remedies under Title II, their actions were allowed to proceed. Id. at 325. See also Finley v. Giacobbe, 827 F.Supp. 215, 219 (S.D.N.Y.1993). The District cites other district court cases which have decided this issue as did the district court in this case. See e.g., Decker v. University of Houston, 970 F.Supp. 575 (S.D.Tex.1997); Iskander v. Rodeo Sanitary District, No. C-94-0479-SC, 1995 WL 56578 (N.D.Cal. Feb. 7, 1995), aff'd, 121 F.3d 715 (9th Cir.1997)(Table). However, in light of the foregoing discussion, these eases are not persuasive. Even the district judge in this case noted that he was “swimming against the current,” 942 F.Supp. at 1442, in deciding that Title II does not encompass employment discrimination claims. In conclusion, we hold that Title II does state a cause of action for employment discrimination and reverse the district court’s grant of summary judgment. REVERSED and REMANDED. . At all relevant times, the District was Bledsoe’s employer; however, because the District had no more than five employees at a time, it" }, { "docid": "12891725", "title": "", "text": "SYKES, Circuit Judge. These consolidated appeals raise a question of first impression in this circuit: Does Title II of the Americans with Disabilities Act (“ADA”) cover employment-related disability discrimination? Title II provides that state and local governments may not exclude eligible disabled persons from “participation in” or “the benefits of’ governmental “services, programs, or activities” or otherwise “subject[]” an eligible disabled person “to discrimination.” See 42 U.S.C. § 12132. Title I, in contrast, specifically prohibits employment discrimination on the basis of disability. See id. § 12112(a). The circuits are split on whether Title II applies to disability discrimination in public employment, supplementing the remedy in Title I. Two circuits have squarely held that it does not apply in this context, leaving Title I as the exclusive ADA remedy for claims of disability discrimination in both public and private employment. See Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10th Cir.2012); Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169 (9th Cir.1999). One circuit has reached the opposite conclusion. See Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.1998). The issue arises here in a flurry of lawsuits brought by Linda Brumfield, who was a Chicago police officer from 1999 until she was fired in 2010. She alleges that in 2006 she began to experience unspecified “psychological problems” and the City required her to submit to periodic psychological evaluations to determine whether she was capable of performing her job. Each time she was found fit for duty. In the meantime, however, the Chicago Police Board suspended her three times and fired her in 2010. Brumfield sued the City of Chicago for employment discrimination, splitting her claims across three lawsuits; only the second and third are relevant here. The second suit alleged claims under Title II of the ADA and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the third suit alleged a claim under Title I of the ADA. The district court held that Title II applied in this context but dismissed the second" }, { "docid": "10652112", "title": "", "text": "by Title I. (Defs.’ Mem. 9-13.) Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from the participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Neither the Supreme Court nor the Second Circuit has decided whether employment discrimination claims may be brought pursuant to Title II. See Garrett, 531 U.S. at 360 n. 1, 121 S.Ct. 955 (declining to decide whether employment discrimination claims can be brought pursuant to Title II when the parties did not brief the issue); Brown v. Connecticut, 08-CV-1478, 2010 WL 2220580, at *18 (D.Conn. May 27, 2010) (“[D]espite multiple opportunities to clarify the law, the Second Circuit has not yet decided whether claims of discrimination in employment are cognizable under Title II of the ADA.”). The two circuit courts that have directly addressed this issue are split. Compare Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (holding that Title II is not applicable to employment discrimination), with Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998) (concluding that employment discrimination claims can be brought pursuant to Title II). Similarly, the district courts within the Second Circuit are divided on the issue. Compare, e.g., Gallagher v. Town of Fairfield, No. 10-CV-1270, 2011 WL 3563160, at *2-3 (D.Conn. Aug. 15, 2011) (holding that Title II does not cover employment discrimination claims); Reddick v. S. Conn. State Univ., No. 10-CV-1118, 2011 WL 1833288, at *2-3 (D.Conn. May 12, 2011) (construing an employment discrimination claim to be brought under Title I, on the assumption that Title II does not cover such claims); Emmons v. City Univ. of N.Y., 715 F.Supp.2d 394, 408 (E.D.N.Y.2010) (holding “that Title I is the exclusive remedy for employment discrimination claims” (emphasis in original)); Melrose, 2009 WL 211029, at *9 (finding that the plaintiffs employment discrimination claims could not be brought pursuant to Title II); Fleming v. State Univ." }, { "docid": "16462046", "title": "", "text": "at 360, n. 1, 121 S.Ct. 955. The Courts of Appeals for the Fifth, Ninth and Eleventh Circuits have answered this question with conflicting results. See Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (Title II inapplicable to employment discrimination), cert, denied, 531 U.S. 1189, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.) (Title II applicable to employment discrimination), cert, denied, 525 U.S. 826, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998); Decker v. Univ. of Houston, 970 F.Supp. 575 (S.D.Tex. 1997) (Title II inapplicable to employment discrimination), affd 159 F.3d 1355 (5th Cir.1988). In the Second Circuit, district court decisions have also reached conflicting results. Cf. Syken v. State of New York, 2003 WL 1787250 (S.D.N.Y. Apr.2, 2003) (Title II inapplicable), with Winokur v. Office of Court Admin., 190 F.Supp.2d 444, 449 (E.D.N.Y.2002) (Title II applicable). Following careful review of the statutory scheme and language of the ADA, as well as existing case law on the subject, it is my opinion that plaintiff should not be permitted to circumvent the holding of Garrett, which immunizes states from employment discrimination claims brought pursuant to Title I of the ADA, by commencing suit under Title II, a subchapter which lacks any of the procedural protections afforded employers under Title I. Thus, I adopt the reasoning of the Court of Appeals for the Ninth Circuit in Zimmerman and the District Court of the Southern District of New York in Syken. Since plaintiff cannot recover monetary damages against the Western New York Children’s Psychiatric Center, a New York State facility, under Title I of the ADA and cannot state a claim for employment discrimination under Title II of the ADA, defendant’s motion to dismiss plaintiffs claim of discrimination in employment based on disability against is granted with prejudice. Title VII Claim The defendant argues that plaintiffs complaint to the NYSDHR was limited to allegations of discrimination based on disability. Dkt. # 6, p. 3. Accordingly, the defendant argues that plaintiff has failed to exhaust his administrative" }, { "docid": "10988787", "title": "", "text": "It is unlikely that if the DOJ had meant the procedural requirements of Title I to apply to claims of employment discrimination brought under Title II, it would have referred to only the part of the E.E.O.C. regulations governing substantive requirements imposed on defendants and neglected to refer to the part of the regulations that address procedural requirements imposed on plaintiffs. Id. We agree with the Petersen court that the procedural requirements of Title I do not apply to Title II plaintiffs. Therefore, the relevant enforcement provisions in this case are those outlined in Title II, pursuant to which Dertz brought Count I. Title II adopts the remedies, rights and procedures the Rehabilitation Act of 1973 (29 U.S.C.A. § 794(a)), which does not require exhaustion of administrative remedies and allows a plaintiff to go directly to federal court. See 42 U.S.C.A. § 12133 (outlining enforcement provisions of Title II); B. Doe, M.D. v. St. Joseph’s Hosp. of Fort Wayne, 788 F.2d 411, 426 (7th Cir.1986) . Thus, the courts that have ruled on this issue have found that because Title II takes its procedures from the Rehabilitation Act, it does not contain an exhaustion requirement, and a Title II case can be filed without having filed with a federal agency first. Doe v. County of Milwaukee, 871 F.Supp. 1072, 1075 (E.D.Wis.1995); Petersen v. Univ. of Wis. Bd. of Regents, 818 F.Supp. 1276, 1277 (W.D.Wis.1993); Ethridge v. State of Alabama, 847 F.Supp. 903, 3 A.D. Cases 162 (M.D.Ala.1993). In reaching this result, the courts have also looked to the regulations promulgated by the DOJ interpreting Title II of the ADA. Bechtel v. East Penn School District of Lehigh County, Pa., No. 93-T-754-5, 1994 WL 3396 (E.D.Pa.1994). The applicable language reads as follows: The Act requires the Department of Justice to establish administrative procedures for resolution of complaints, but does not require complainants to exhaust these administrative remedies. Because the Act does not require exhaustion of administrative remedies, the complainant may elect to proceed with a private suit at any time. 28 C.F.R. § 35.172. app. A. See also Title II Technical" } ]

[ { "docid": "11708280", "title": "", "text": "Clearly, a written agreement that contains a non-compete clause is the best way of promoting predictability during the employment relationship and after-wards. Id. at 310-11. Based on these drawbacks, many of the cases which have successfully applied the inevitable disclosure doctrine “involved the potential disclosure of trade secrets by employees who had expertise in highly technical industries.” Int’l Paper Co. v. Suwyn, 966 F.Supp. 246, 258-59 (S.D.N.Y.1997) (citing Cont’l Group, Inc. v. Kinsley, 422 F.Supp. 838, 841 (D.Conn.1976) (applying doctrine in a case involving an engineer in the field of plastic container development); Bus. Intelligence Servs., Inc. v. Hudson, 580 F.Supp. 1068 (S.D.N.Y.1984) (applying doctrine to a case involving the computer software industry)). In finding a likelihood of disclosure, other courts that have applied the inevitable disclosure doctrine assess the degree of competition between the former and new employer, and the new employer’s efforts to safeguard the former employer’s trade secrets, and the former employee’s “lack of forthrightness both in his activities before accepting his job ... and in his testimony,” as well as the degree of similarity between the employee’s former and current position. PepsiCo, 54 F.3d at 1267; PepsiCo, Inc. v. Redmond, No. 94 C 6838, 1996 WL 3965, at *20 (N.D.Ill. Jan.2, 1996) (citing IBM Corp. v. Seagate Tech., Inc., 1991 WL 757821, at *7, 1991 U.S. Dist. LEXIS 20406, at *7 (D.Minn.1991)). Stated differently, in granting injunctive relief under this doctrine, it appears that courts generally consider the present state and nature of the industries at issue to determine whether the alleged harm would be irreparable and that injunctive relief is granted in cases where the employee’s knowledge would allow a competitor to improve its business with little or no effort, see Business Intelligence, 580 F.Supp. at 1072, or where the present and former employers were “endeavoring to develop the identical product” and the breaching employee had “learned exactly how [his former employer] was making the. [product],” including all details concerning the production process, which refinements in the process were producing improvements and failures, and how near to success development efforts were. Kinsley, 422 F.Supp. at" } ]

[ { "docid": "20065162", "title": "", "text": "the loss of goodwill, the irreparable injury prong is satisfied.” Id. at 552. Similarly, the United States Court of Appeals for the Sixth Circuit in Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir.1992), held that “[t]he loss of customer goodwill often amounts to irreparable injury because the damages flowing from such losses are difficult to compute.” Id. at 511-12 (citations omitted). See Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir.1991). In Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1 st Cir.1996), the United States Court of Appeals for the First Circuit considered a case similar to the one before the Court. In Ross-Simons of Warwick, Inc. v. Baccarat, Inc., a manufacturer refused to supply goods to a vendor, even though customers had already ordered the goods from the vendor and were expecting them. The First Circuit held that “[t]he harm to [the vendor’s] general goodwill stemming from its inability to fill such orders ... would be incalculable, and, thus, irreparable.” Id. at 19 n. 7 (citing cases). The Tenth Circuit has also acknowledged that the loss of an opportunity to distribute a unique product, diminished competitive position, and loss of customers all support an irreparable harm determination. See Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d at 1263. In a comparable case, CPM Indus., Inc. v. Fayda Chemicals & Minerals, Inc., No. 15996, 1997 WL 762650, 1997 Del. Ch. LEXIS 175 (Del. Ch.1997), the Delaware Chancery Court acknowledged that a company’s inability to supply a product, even if it were temporary, could result in a permanent competitive disadvantage. In CPM Indus., Inc. v. Fayda Chemicals & Minerals, Inc., the plaintiff sought a preliminary injunction against a competitor to ensure its continued supplies of Ti02 (Titanium Dioxide). The competitor had arranged to cut off the plaintiffs supply of Ti02, which was the plaintiffs sole product and source of income. The Delaware Chancery Court explained that the plaintiff was likely to suffer irreparable harm if the preliminary injunction was not issued, because the “[plaintiff] cannot compete effectively if [its] customers come to doubt" }, { "docid": "9525716", "title": "", "text": "which is an anathema to our system of jurisprudence”). McCormick v. Farrar, 2001 WL 1456796, *2 (D.Kan.2001). Irreparable Harm General law A harm is irreparable if money damages are an inadequate remedy because of difficulty or uncertainty in their proof or calculation. Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir.1990). “[L]oss of customers, loss of goodwill, and threats to a business’ viability can constitute irreparable harm.” Zurn Constructors, Inc. v. B.F. Goodrich Co., 685 F.Supp. 1172, 1181 (D.Kan.1988); see Fireworks Spectacular, Inc. v. Premier Pyrotechnics, Inc., 86 F.Supp.2d 1102, 1108 (D.Kan.2000) (irreparable harm due to “extreme difficulty and uncertainty in restoring goodwill among customers and regaining the business of customers”). See Flying Cross Check, L.L.C. v. Central Hockey League, Inc., 153 F.Supp.2d 1253, 1259 (D.Kan.2001). “Perhaps the most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be granted.” Citibank N.A. v. Citytrust, 756 F.2d 273, 275 (2nd Cir.1985). A speculative injury or the mere possibility of harm will not suffice. Public Service Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380, 383 (1st Cir.1987). On the other hand, the movant need not establish an actual injury or the certainty of an injury occurring; it is enough to show “ ‘a strong threat of irreparable injury before trial.’ ” Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir.1990) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948 at 437-38 (1973)). Lanham Act Cases Plaintiff contends that irreparable harm is presumed in Lanham Act cases if a reasonable likelihood of success on the merits is shown. Plaintiff relies upon the well-established presumption in other circuits that injuries arising from Lanham Act violations are irreparable, even absent a showing of business loss. See, e.g., Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir.1992); McNeilab, Inc. v. American Home Prods. Corp., 848 F.2d 34, 38 (2d Cir.1988). This presumption is based upon the rationale that" }, { "docid": "9525715", "title": "", "text": "Carriers, Inc. v. Baytree Investors, Inc., 685 F.Supp. 800, 806 (D.Kan.1988) (citations omitted). In this case, plaintiff bears the heavy burden of showing that the following four factors for a preliminary injunction weigh heavily in its favor: (1) it will suffer irreparable injury unless the temporary relief issues; (2) the threatened injury to the movant outweighs whatever damage the temporary relief may cause the opposing party; (3) the temporary relief would not be adverse to the public interest; and (4) there is a substantial likelihood that the movant will eventually prevail on the merits. City of Chanute v. Kansas Gas and Elec. Co., 754 F.2d 310, 313 (10th Cir.1985). A movant’s burden is particularly heavy when the injunctive relief sought would in effect grant the movant a substantial part of the relief the plaintiff would recover upon a trial of the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1099 (10th Cir.1991) (such in-junctive relief “is similar to the ‘Sentence first — Verdict Afterwards’ type of procedure parodied in Alice in Wonderland, which is an anathema to our system of jurisprudence”). McCormick v. Farrar, 2001 WL 1456796, *2 (D.Kan.2001). Irreparable Harm General law A harm is irreparable if money damages are an inadequate remedy because of difficulty or uncertainty in their proof or calculation. Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir.1990). “[L]oss of customers, loss of goodwill, and threats to a business’ viability can constitute irreparable harm.” Zurn Constructors, Inc. v. B.F. Goodrich Co., 685 F.Supp. 1172, 1181 (D.Kan.1988); see Fireworks Spectacular, Inc. v. Premier Pyrotechnics, Inc., 86 F.Supp.2d 1102, 1108 (D.Kan.2000) (irreparable harm due to “extreme difficulty and uncertainty in restoring goodwill among customers and regaining the business of customers”). See Flying Cross Check, L.L.C. v. Central Hockey League, Inc., 153 F.Supp.2d 1253, 1259 (D.Kan.2001). “Perhaps the most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be granted.” Citibank N.A. v. Citytrust, 756 F.2d 273, 275 (2nd" }, { "docid": "13256054", "title": "", "text": "to suffer irreparable harm before a decision on the merits can be rendered.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985). Irreparable harm is that injury which is so serious that “a monetary award cannot be adequate compensation.” Id. at 275; see also Warner-Lambert Co. v. Northside Development Corp., 86 F.3d 3, 8 (2d Cir.1996) (irreparable harm requirement may be met by showing that harm is unquantifiable in monetary terms). In order to demonstrate irreparable injury the movant must show “an injury that is neither remote nor speculative, but actual and imminent and cannot be remedied by an award of monetary damages.” Earthweb, Inc. v. Schlack, 2000 WL 1093320, at *2, 2000 U.S.App. LEXIS 11446, at *5-6 (2d Cir. May 18, 2000) (finding plaintiffs showing insufficient to warrant a preliminary injunction where they failed to demonstrate that defendant had removed proprietary documents or information or was about to violate his duties under the agreement). Irreparable harm is presumed where a trade secret has been misappropriated because, as the Court of Appeals for the Second Circuit has explained, “[a] trade secret once lost is, of course, lost forever” and, therefore, such a loss “cannot be measured in money damages.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984). Even where a trade secret has not yet been disclosed, irreparable harm may be found based upon a finding that trade secrets will inevitably be disclosed where, as here, “the movant competes directly with the prospective employer and the transient employee possesses highly confidential or technical knowledge concerning [ ] marketing strategies, or the like.” EarthWeb, Inc. v. Schlack, 71 F.Supp.2d 299, 309 (S.D.N.Y.1999). It is concluded that Estee Lauder has carried its burden of demonstrating irreparable injury for the following reasons. First, if Batra does misappropriate Estee Lauder’s trade secrets, it would be “very difficult to calculate the monetary damages that would successfully redress the loss,” Ticor Title Insurance Co. v. Cohen, 173 F.3d 63, 68-69 (2d Cir.1999), given the difficulty in ascertaining empirically how much of a competitive advantage such information gives Perrieone and/or" }, { "docid": "20065161", "title": "", "text": "to intercept or cause to be intercepted shipments of hoasca imported by the UDV for religious use, prosecute or threaten to prosecute the UDV, its members, or bona fide participants in UDV ceremonies for religious use of hoasca, or otherwise interfere with the religious use of hoasca by the UDV, its members, or bona fide participants in UDV ceremonies.... Id. (quotation omitted). 2. Irreparable Harm. The Tenth Circuit has acknowledged several different economic losses under the irreparable harm standard. The Tenth Circuit has acknowledged that loss of customer goodwill is a factor that supports an irreparable harm determination. See Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1263 (10th Cir.2004). Many other cases have found that loss of goodwill is an irreparable harm. For example, in Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir.1994), the United States Court of Appeals for the Fourth Circuit held that, “when the failure to grant preliminary injunction creates the possibility of permanent loss of customers to a competitor or the loss of goodwill, the irreparable injury prong is satisfied.” Id. at 552. Similarly, the United States Court of Appeals for the Sixth Circuit in Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir.1992), held that “[t]he loss of customer goodwill often amounts to irreparable injury because the damages flowing from such losses are difficult to compute.” Id. at 511-12 (citations omitted). See Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir.1991). In Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1 st Cir.1996), the United States Court of Appeals for the First Circuit considered a case similar to the one before the Court. In Ross-Simons of Warwick, Inc. v. Baccarat, Inc., a manufacturer refused to supply goods to a vendor, even though customers had already ordered the goods from the vendor and were expecting them. The First Circuit held that “[t]he harm to [the vendor’s] general goodwill stemming from its inability to fill such orders ... would be incalculable, and, thus, irreparable.” Id. at 19 n. 7 (citing cases). The" }, { "docid": "8216807", "title": "", "text": "Taylor, 295 F.Supp.2d 1188, 1195 (E.D.Wash.2003) (supporting an employer’s use of the CFAA's Civil Remedies to sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system). . Universal Engraving, Inc. v. Duarte, 519 F.Supp.2d 1140, 1155 (D.Kan.2007) (citing Fryetech, Inc. v. Harris, 46 F.Supp.2d 1144, 1152 (D.Kan.1999)). . Id. (citing Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650, 659 (1979)). . Id. . Id. (citing Burton Enter. v. Wheeler, 643 F.Supp. 588, 592 (D.Kan.1986)). . Turner v. Halliburton Co., 240 Kan. 1, 722 P.2d 1106, 1115 (1986). . Dodson Aviation, Inc. v. Raytheon Aircraft Co., 124 P.2d 1083 (Table), 2005 WL 3527064, at *8 (Kan.App.2005) (citing Burc-ham v. Unison Bancorp, Inc., 276 Kan. 393, 77 P.3d 130 (2003)). . Id. (citing Turner, 722 P.2d at 1115). . See Blackwell v. Harris Chem. N. Am. Inc., 11 F.Supp.2d 1302, 1307 (D.Kan.1998); see also Trevino v. Union Pac. R. Co., 916 F.2d 1230, 1234 (7th Cir. 1990). . Nwakpuda v. Falley’s Inc., 14 F.Supp.2d 1213, 1216 (D.Kan.1998) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). . OMB Police Supply, Inc. v. Elbeco, Inc., No. 00-2518-KHV, 2001 WL 681575, at *4 (D.Kan. May 11, 2001) (citation omitted). . Muhl v. Bohi, 37 Kan.App.2d 225, 152 P.3d 93, 101 (2007) (quoting Carmichael v. Halstead Nursing Ctr., Ltd., 701 P.3d 934, Syl. 2 (1985)). . Carson v. Lynch Multimedia Corp., 123 F.Supp.2d 1254, 1261 (D.Kan.2000) (citing State ex rel. Mays v. Ridenhour, 248 Kan. 919, 811 P.2d 1220 (1991)). . Id." }, { "docid": "13256055", "title": "", "text": "Second Circuit has explained, “[a] trade secret once lost is, of course, lost forever” and, therefore, such a loss “cannot be measured in money damages.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984). Even where a trade secret has not yet been disclosed, irreparable harm may be found based upon a finding that trade secrets will inevitably be disclosed where, as here, “the movant competes directly with the prospective employer and the transient employee possesses highly confidential or technical knowledge concerning [ ] marketing strategies, or the like.” EarthWeb, Inc. v. Schlack, 71 F.Supp.2d 299, 309 (S.D.N.Y.1999). It is concluded that Estee Lauder has carried its burden of demonstrating irreparable injury for the following reasons. First, if Batra does misappropriate Estee Lauder’s trade secrets, it would be “very difficult to calculate the monetary damages that would successfully redress the loss,” Ticor Title Insurance Co. v. Cohen, 173 F.3d 63, 68-69 (2d Cir.1999), given the difficulty in ascertaining empirically how much of a competitive advantage such information gives Perrieone and/or how much detriment it might cause to the future profitability of R + F and/or Dar-phin products. See Shipley Co. v. Clark, 728 F.Supp. 818, 827 (D.Mass.1990) (“the task of quantifying the consequences of violating a non-competition clause is a particularly difficult and elusive one”). Additionally, as in Ticor, the employment agreement between Batra and Estee Lauder “concedes that in the event of breach of the post-employment competition provision, [Estee Lauder] shall be entitled to injunctive relief, because it would cause irreparable injury.” (See Bous-queNChavanne Deck, Exhibit B, ¶ 13.) As in Ticor therefore, the agreement’s language “might arguably be viewed as an admission by [Batra] that plaintiff will suffer irreparable harm were he to breach the contract’s non-compete agreement.” Ticor, 173 F.3d at 69. Batra contends that Estee Lauder has not demonstrated irreparable injury, but rather simply has speculated about the possibility that Batra will use the alleged confidential business information. According to Batra, Estee Lauder cannot satisfy this requirement because: (1) Batra does not have any technical expertise; (2) Perri-cone and Batra do" }, { "docid": "8420024", "title": "", "text": "harm from violation of non-disclosure agreement where past and future losses, as well as past lost goodwill, were quantifiable). See also Paradise Distribs., Inc., 906 F.Supp. at 623 n. 4 (exclusive right to distribute product not sufficient by itself to support irreparable harm finding). Courts finding irreparable harm from breaches of exclusivity provisions have not rested their determinations solely on the existence and subsequent breaches of the exclusivity provisions. Rather, they have identified the following as factors supporting irreparable harm determinations: inability to calculate damages, harm to goodwill, diminishment of competitive positions in marketplace, loss of employees’ unique services, the impact of state law, and lost opportunities to distribute unique products. See, e.g., Tom Doherty Assocs., Inc. v. Soban Entm’t, Inc., 60 F.3d 27, 37-39 (2d Cir.1995) (loss of prospective goodwill through inability to market unique product constituted irreparable harm); JAK Prods., Inc. v. Wiza, 986 F.2d 1080, 1084 (7th Cir.1993) (under Indiana law, when employee uses experience gained from employer in violation of covenant not-to-compete, irreparable injury occurs); Basicomputer Corp. v. Scott, 973 F.2d 507, 511-12 (6th Cir.1992) (violation of covenant not-to-compete constituted irreparable harm where damages were difficult to calculate, customer goodwill was damaged, and plaintiff suffered loss of competitive position); Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir.1991) (irreparable harm established from violation of covenant not-to-compete where intangibles like advertising efforts and goodwill were injured); Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir.1990) (irreparable harm exists where damages from breach of covenant not-to-compete difficult to calculate); Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 592 (8th Cir.1984) (breach of exclusive distribution agreement constituted irreparable harm where company was disadvantaged in competitive market by inability to market unique seed corn); Shred-It USA Inc., 202 F.Supp.2d at 233-34 (loss of employee’s unique services to competitor in violation of do-not-compete agreement constituted irreparable harm); Green Stripe, Inc. v. Berny’s Intemacionale, S.A, 159 F.Supp.2d 51, 56-57 (E.D.Pa.2001) (violation of exclusivity clause in sales contract constituted irreparable harm where plaintiff was denied ability to sell unique, perishable grape and lacked" }, { "docid": "6228815", "title": "", "text": "customers may constitute a trade secret. BioCore, Inc. v. Khosrowshahi, 96 F.Supp.2d 1221, 1235 (D.Kan.2000). “It is the tangible customer lists and notes, as opposed to the customers themselves, that are the protected trade secrets.” Fireworks Spectacular v. Premier Pyrotechnics, 147 F.Supp.2d at 1068 (citing Garst v. Scott, 114 Kan. 676, 220 P. 277, 278 (1923) and BioCore, Inc. v. Khosrowshahi, 96 F.Supp.2d at 1235). Of course, a mere list of customers’ names and addresses may not always be a trade secret, this conclusion is made after a “fact-intensive inquiry” into the contents of the list. BioCore, 96 F.Supp.2d at 1235. When the information or lists contain matters readily known or accessible to the public, trade secret status and protection depends on other considerations including the effort made in compiling the information and keeping it confidential: Customer lists containing merely public information that could be easily compiled by third parties will not be protected as trade secrets; however, where “the party compiling the customer lists, while using public information as a source, ... expends a great deal of time, effort and expense in developing the lists and treats the lists as confidential in its business, the lists may be entitled to trade secret protection.” Robert B. Vance & Assocs., Inc. v. Baronet Corp., 487 F.Supp. 790, 799 (N.D.Ga.1979). Fireworks Spectacular, Inc. v. Premier Pyrotechnics, Inc., 86 F.Supp.2d 1102, 1106 (D.Kan.2000). Another consideration is what other detailed information is compiled with the customer lists; “Detailed records, however, regarding such information as purchasing patterns, sales volumes and payment histories may be a trade secret.” BioCore, Inc., 96 F.Supp.2d at 1235 (citing All West Pet Supply Co. v. Hill’s Pet Prod. Div., 840 F.Supp. 1433, 1438 (D.Kan.1993)). Rather than requiring complete secrecy, Kansas law only requires the trade secret owner to “exercise reasonable efforts under the circumstances to maintain its secrecy.” Fireworks Spectacular v. Premier Pyrotechnics, 107 F.Supp.2d 1307, 1308 (D.Kan.2000). “ ‘[EJven if the plaintiff establishes the existence of a valuable trade secret which has been subject to reasonable efforts to maintain secrecy, the plaintiff still must establish that there has been" }, { "docid": "20065165", "title": "", "text": "through monetary remedies. Such a threat is the possibility of customers being permanently discouraged from patronizing one’s business. The District Court found more potential injury to plaintiff-appellees than merely the downturn of business. It found that appellants’ actions tended to discourage patrons from patronizing appellees’ businesses. Id. at 1001 (quotation and citation omitted). The Tenth Circuit has acknowledged that irreparable harm exists where losses are difficult to calculate with certainty. See Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 356 F.3d at 1263. In General Leaseways, Inc. v. National Truck Leasing Ass’n, 744 F.2d 588 (7th Cir.1984), a suit by a trucking franchise to block an attempted expulsion by a franchisor, the United States Court of Appeals for the Seventh Circuit upheld a preliminary injunction against expulsion, holding that the franchisee would suffer irreparable harm because “the difficulties of proving lost profits make it chancy to rely on a damage award to provide full compensation even where as in this case a preliminary injunction is not necessary to keep the plaintiff afloat while the suit is proceeding toward final judgement.” Id. at 591. See McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1259 (D.N.M.2003)(holding that irreparable harm is suffered “when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain”). In a suit by a cable company that had installed cable delivery systems in several apartment complexes, which had them switched to another cable supplier, the Fourth Circuit held: [T]he historical average of Adelphia’s revenue does not provide an adequate basis for measuring the potential loss of revenue because Adelphia only began providing a la carte service in the summer of 1993. The relative novelty of such service clearly makes any calculation of Adelphia’s damages “difficult to ascertain” and, therefore, supports a finding that Adelphia would suffer irreparable harm. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d at 552. The Supreme Court has held that where a party “would suffer a substantial loss of business and perhaps even bankruptcy ... the" }, { "docid": "8216806", "title": "", "text": ". See Zinermon, 494 U.S. at 118, 110 S.Ct. 975; see also Fed.R.Civ.P. 8(a). . See Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir.1991). . Id. atlllO. . Donchez v. Coors Brewing Co., 392 F.3d 1211, 1215 (10th Cir.2004) (quoting U.S. Search, LLC v. U.S. Search.com, Inc., 300 F.3d 517, 522 (4th Cir.2002)). . Id. (quoting Packman v. Chicago Tribune Co., 267 F.3d 628, 638 (7th Cir.2001)). . Id. (citations omitted). . See 18 U.S.C. § 1030(g). . See C.H. Robinson Worldwide, Inc. v. Command Transp., LLC, No. 05 C 3401, 2005 WL 3077998, at *2 (N.D.Ill. Nov. 16, 2005) (citation omitted). .Id. . See 18 U.S.C. § 1030(a)(5)(B)(i). . See, e.g., C.H. Robinson Worldwide, Inc., 2005 WL 3077998, at *3; Charles Schwab & Co., Inc. v. Carter, No. 04 C 7071, 2005 WL 351929, at *3 (N.D.Ill. Feb. 11, 2005) (recognizing plaintiff had stated a claim under the CFAA when it alleged that defendant had acquired trade secrets that were later used to the detriment of plaintiff); Pac. Aerospace & Elec., Inc. v. Taylor, 295 F.Supp.2d 1188, 1195 (E.D.Wash.2003) (supporting an employer’s use of the CFAA's Civil Remedies to sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system). . Universal Engraving, Inc. v. Duarte, 519 F.Supp.2d 1140, 1155 (D.Kan.2007) (citing Fryetech, Inc. v. Harris, 46 F.Supp.2d 1144, 1152 (D.Kan.1999)). . Id. (citing Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650, 659 (1979)). . Id. . Id. (citing Burton Enter. v. Wheeler, 643 F.Supp. 588, 592 (D.Kan.1986)). . Turner v. Halliburton Co., 240 Kan. 1, 722 P.2d 1106, 1115 (1986). . Dodson Aviation, Inc. v. Raytheon Aircraft Co., 124 P.2d 1083 (Table), 2005 WL 3527064, at *8 (Kan.App.2005) (citing Burc-ham v. Unison Bancorp, Inc., 276 Kan. 393, 77 P.3d 130 (2003)). . Id. (citing Turner, 722 P.2d at 1115). . See Blackwell v. Harris Chem. N. Am. Inc., 11 F.Supp.2d 1302, 1307 (D.Kan.1998); see also Trevino v. Union Pac. R. Co., 916 F.2d 1230, 1234 (7th Cir. 1990). . Nwakpuda v. Falley’s Inc., 14" }, { "docid": "20359312", "title": "", "text": "Curtis 1000 may sustain can be calculated with accuracy and compensated by money damages. He relies on the fact that Curtis 1000 has records of Youngblade’s sales. Thus, he contends that Curtis 1000 will be able to calculate with specificity any losses in sales Curtis 1000 alleges that it has lost as a result of his actions. As noted above, a party moving for a preliminary injunction is required to show the threat of irreparable harm. Baker Elec. Co-op., Inc., 28 F.3d at 1472; Computer Systems, Inc. v. Modem Banking Sys., Inc., 871 F.2d 734, 738 (8th Cir.1989); Dataphase, 640 F.2d at 114. A plaintiffs harm is not irreparable if it is fully compensable by money damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992); see Cellular Sales, Inc., 942 F.2d at 487; Cotter v. Desert Palace, Inc., 880 F.2d 1142, 1145 (9th Cir.1989); ECRI v. McGraw-Hill, 809 F.2d 223, 236 (3d Cir.1987); Foxboro Co. v. Arabian American Oil Co., 805 F.2d 34, 36 (1st Cir.1986); Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 850 (9th Cir.1985); Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.1984); Interox America v. PPG Indus., Inc., 736 F.2d 194, 202 (5th Cir.1984); Itek Corp. v. First Nat’l Bank of Boston, 730 F.2d 19, 22 (1st Cir.1984); Deerfield Medical Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981); Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th Cir.1981); Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1202 (9th Cir.1980); Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2nd Cir.1979); Superior Services, Inc. v. Dalton, 851 F.Supp. 381, 387 (S.D.Cal.1994); Salt Pond Assocs. v. United States Army Corps of Engineers, 815 F.Supp. 766, 784 (D.Del.1993); Beztak Co. v. Bank One Columbus, N.A, 811 F.Supp. 274, 285 (E.D.Mich.1992); Claughton v. Donner, 771 F.Supp. 1200, 1204 (S.D.Fla.1991). A number of courts, however, have held that irreparable injury can result by virtue of a breach of a valid covenant not to complete. See Overholt Crop Ins. Serv. Co.," }, { "docid": "5087345", "title": "", "text": "irreparable harm for this purpose. See Overstreet, 305 F.3d at 579 (citing Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (“the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury”) and Aluminum Workers Int’l Union, AFL-CIO, Local Union No. 215 v. Consol. Aluminum Corp., 696 F.2d 437, 444 (6th Cir.1982) (finding that employees did not suffer irreparable harm from unemployment pending arbitration) and Minnesota Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir.1995) (“[t]he loss of a job is quintessentially reparable by money damages”)); Jerome v. Viviano Food Co., Inc., 489 F.2d 965 (6th Cir.1974) (Title VII plaintiff who claimed that defendant refused to hire her because she was a woman was not entitled to a preliminary injunction, because an award of back wages could adequately compensate her later if she prevailed on her claim). Even a company’s substantial loss of market share or complete dissolution or bankruptcy does not constitute irreparable harm for this purpose, because it too can be compensated by money damages later. See Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir.1991) (district court did not abuse discretion in denying agri cultural cooperative’s motion for PI, notwithstanding cooperative’s allegation that the defendants’ continued contractual breaches “will lead to a decline in confidence in the cooperative” and, in turn, “difficulty in acquiring milk, loss of customers, and ultimately ... the dissolution of the cooperative”); United Food & Commercial Workers Union, Local No. 626 v. Kroger Co., 778 F.2d 1171 (6th Cir.1985) (district court did not abuse discretion in denying union’s motion for PI prohibiting sale of stores pending arbitration, because arbitrator could award back-pay and damages if it found that company breached contract, and company would suffer substantial harm if injunction were erroneously granted unless union posted very large bond); Eberspaecher North Am., Inc. v. Van-Rob, Inc., 544 F.Supp.2d 592 (E.D.Mich.2008) (manufacturer of automotive exhaust system products would not suffer irreparable harm if it were required to pay price increases that defendant muffler supplier alleged were due under requirements contract," }, { "docid": "14586736", "title": "", "text": "at *6 (quoting Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan.1995)). . Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). . Upjohn, 449 U.S. at 390, 101 S.Ct. 677. . Great Plains Mut. Ins. Co., 150 F.R.D. at 196 (citation omitted). . Burton v. R.J. Reynolds Tobacco Co., 175 F.R.D. 321, 327 (D.Kan.1997) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. Olano, 62 F.3d 1180 (9th Cir.1995)). . IMC Chemicals, Inc. v. Niro, Inc., No. 98-2348, 2000 WL 1466495, at *8-9 (D.Kan. July 19, 2000) (quoting Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). . Id. . Burton, 175 F.R.D. at 328. . Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 484 (D.Kan. 1997)(citing Leonen v. Johns-Manville, 135 F.R.D. 94 (D.N.J.1990)). . Id. (citing In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 354268 (N.D.Ill.1995)). . Id. (citing Oil Chem. & Atomic Workers Int'l Union v. Am. Home Products, 790 F.Supp. 39 (D.P.R.1992)). . Id. (citing United States v. Olano, 62 F.3d 1180 (9th Cir.1995)). . Id. (citing United States v. Brickey, 426 F.2d 680 (8th Cir.1970)). . Id. (citing United States v. Pappadio, 346 F.2d 5 (2nd Cir.1965)). . Id. (citing United States v. Defazio, 899 F.2d 626 (7th Cir.1990); In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 354268 (N.D.Ill.1995)). . Id. (citing United States v. Bartone, 400 F.2d 459 (6th Cir. 1968)). . Id. (citing Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir.1987)). . Id. (citing Leonen v. Johns-Manville, 135 F.R.D. 94 (D.N.J.1990); Oil Chem. & Atomic Workers Int’l Union v. American Home Prods., 790 F.Supp. 39 (D.P.R.1992)). . Id. (citing U.S. ex rel. Stone v. Rockwell Int’l Corp., 144 F.R.D. 396 (D.Colo.1992)). . Id. . Id. (citing United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F.Supp. 156 (E.D.N.Y.1994)). . Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 703 (10th Cir.1998)(citing Fed.R.Civ.P. 26(b)(3)). . Raytheon Aircraft Co. v. U.S." }, { "docid": "19783551", "title": "", "text": "(D.Kan. 1996) (quotation omitted). . Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991); Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). . Associated Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). . Mounkes, 922 F.Supp. at 1506 (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988) (quotation omitted)). . Poole v. County of Otero, 271 F.3d 955, 955 (10th Cir.2001). . Britvic Soft Drinks, Ltd. v. ACSIS Techs., Inc., 265 F.Supp.2d 1179, 1187 (D.Kan.2003). . The Court may properly consider the MOU on motion to dismiss. A document referred to in the complaint and central to the plaintiffs claim may be considered in a motion to dismiss if the defendant submits an indisputably authentic copy, even though the document is not incorporated by reference or attached to the complaint. See MacArthur v. San Juan County, 309 F.3d 1216, 1221 (10th Cir.2002). . Dean Operations, Inc., v. One Seventy Assoc., 257 Kan. 676, 896 P.2d 1012 (1995). . Doughty v. CSX Transp., Inc., 258 Kan. 493, 905 P.2d 106, 110 (1995). . See Britvic Soft Drinks, Ltd. v. ACSIS Techs., Inc., No. 01-2243-CM, 2004 WL 1900584, at *2 (D. Kan. June 8, 2004). . No. 04-2310-KHV, 2005 WL 387659, at *3 (D.Kan. Feb. 17, 2005) (citing Fusion, Inc. v. Neb. Aluminum Castings, Inc., 934 F.Supp. 1270, 1275 (D.Kan.1996)). . Id. . Id. . 934 F.Supp. 1270 (D.Kan.1996). . Id. at 1274-75. . Id. . See Britvic Soft Drinks, Ltd. v. ACSIS Techs., Inc., No. 01-2243-CM, 2004 WL 1900585, at *2 (D. Kan. June 8, 2004) (citing Member Servs. Life Ins. Co. v. Am. Nat’l Bank & Trust Co., 130 F.3d 950, 957 (10th Cir.1997)). . Id. (quoting Fusion, Inc. v. Neb. Aluminum Castings, Inc. ., 934 F.Supp. 1270, 1275 (D.Kan.1996)). . Id. . (Doc. 39 at 5); see No. 04-2310-KHV, 2005 WL 387659, at *3 (D.Kan. Feb. 17, 2005). . Cohen v. Lockwood, No. 02-2246-CM, 2003 WL 21384313, at *3 (D.Kan. June 12, 2003) (citing Fed.R.Civ.P. 8(a)). . Id. (citing Fed.R.Civ.P. 8(e)(2)). . 255 Kan." }, { "docid": "5087344", "title": "", "text": "to the second factor of the test for preliminary injunctive relief, Essroc fails to even allege any harm that it will suffer, if a TRO and PI do not issue, that will not be reparable with an award of monetary damages following a victory on a dispositive motion or at trial. See Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir.2002) (“A plaintiffs harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages.”) (citing Basiccomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992)); see, e.g., Zazueta v. Ky. Cmty. & Tech. Coll. Sys., 92 Fed.Appx. 298 (6th Cir.2004) (p.c.) (Batchelder, Gibbons, E.D. Mich. D.J. Avern Cohn) (in professor’s employment-discrimination action against college and its officials, district court did not abuse discretion in denying professor’s request for preliminary injunction because she had an adequate remedy at law in the form of money damages if she prevailed). Even temporary unemployment or other total loss of income, remediable later by payment of money, is not irreparable harm for this purpose. See Overstreet, 305 F.3d at 579 (citing Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (“the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury”) and Aluminum Workers Int’l Union, AFL-CIO, Local Union No. 215 v. Consol. Aluminum Corp., 696 F.2d 437, 444 (6th Cir.1982) (finding that employees did not suffer irreparable harm from unemployment pending arbitration) and Minnesota Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir.1995) (“[t]he loss of a job is quintessentially reparable by money damages”)); Jerome v. Viviano Food Co., Inc., 489 F.2d 965 (6th Cir.1974) (Title VII plaintiff who claimed that defendant refused to hire her because she was a woman was not entitled to a preliminary injunction, because an award of back wages could adequately compensate her later if she prevailed on her claim). Even a company’s substantial loss of market share or complete dissolution or bankruptcy does not constitute irreparable harm for this purpose, because it too can" }, { "docid": "19783552", "title": "", "text": "CSX Transp., Inc., 258 Kan. 493, 905 P.2d 106, 110 (1995). . See Britvic Soft Drinks, Ltd. v. ACSIS Techs., Inc., No. 01-2243-CM, 2004 WL 1900584, at *2 (D. Kan. June 8, 2004). . No. 04-2310-KHV, 2005 WL 387659, at *3 (D.Kan. Feb. 17, 2005) (citing Fusion, Inc. v. Neb. Aluminum Castings, Inc., 934 F.Supp. 1270, 1275 (D.Kan.1996)). . Id. . Id. . 934 F.Supp. 1270 (D.Kan.1996). . Id. at 1274-75. . Id. . See Britvic Soft Drinks, Ltd. v. ACSIS Techs., Inc., No. 01-2243-CM, 2004 WL 1900585, at *2 (D. Kan. June 8, 2004) (citing Member Servs. Life Ins. Co. v. Am. Nat’l Bank & Trust Co., 130 F.3d 950, 957 (10th Cir.1997)). . Id. (quoting Fusion, Inc. v. Neb. Aluminum Castings, Inc. ., 934 F.Supp. 1270, 1275 (D.Kan.1996)). . Id. . (Doc. 39 at 5); see No. 04-2310-KHV, 2005 WL 387659, at *3 (D.Kan. Feb. 17, 2005). . Cohen v. Lockwood, No. 02-2246-CM, 2003 WL 21384313, at *3 (D.Kan. June 12, 2003) (citing Fed.R.Civ.P. 8(a)). . Id. (citing Fed.R.Civ.P. 8(e)(2)). . 255 Kan. 593, 876 P.2d 609 (1994); see also Phillips v. Tyler, 35 Kan.App.2d 256, 129 P.3d 656, 658 (2006). . Mahler, 876 P.2d at 616. . Id. (quoting Restatement (Second) of Torts § 552 (1976)). . Gerhardt v. Harris, 261 Kan. 1007, 934 P.2d 976, 984 (1997). . Id. at 985-86. . Universal Premium Acceptance Corp. v. Oxford Bank & Trust, 277 F.Supp.2d 1120, 1129-30 (D.Kan.2003) (citing Graphic Techs., Inc. v. Pitney Bowes, Inc., 998 F.Supp. 1174, 1179-80 (D.Kan.1998)). . Id. . (Doc. 27 at 16.) Defendants argue that the Court should disregard this new allegation. ICE incorporated into its negligent misrepresentation claim all other factual allegations in the Complaint. Further, unlike fraud, negligent misrepresentation need not be pleaded with particularity under Fed.R.Civ.P. 9(b). See Universal Premium, 277 F.Supp.2d at 1130-31; Shaffer v. Eden, 209 F.R.D. 460, 464 (D.Kan.2002). . Universal Premium, 277 F.Supp.2d at 1129-30. . Graphic Techs., Inc., 998 F.Supp. at 1179. . Universal Premium, 277 F.Supp.2d at 1130. . Graphic Techs, Inc., 998 F.Supp. at 1179. . Clark v. Assocs. Comm. Corp., 149" }, { "docid": "6228812", "title": "", "text": "obtaining bids or business opportunities for these aircraft.” (Dk.116, p. 29). The plaintiff alleges it “owned all rights, title, and interest to receive solicitations and business opportunities presented to it for salvage bids from its customers, clients, owners and insurers” and that customer lists and information are trade secrets. Id. The plaintiff further claims its relationship with certain insurers and owners of aircraft in this case “lent itself to an exclusive relationship in which certain trade secrets were developed” and the defendants misappropriated “Dodson’s access to and relationship with clients through the Altendorfs.” Id. at 30. The threshold issue here is whether the plaintiff has come forth with admissible probative evidence from which a jury reasonably could find that the information allegedly misappropriated was a trade secret. The existence of a trade secret is a question for the trier of fact. Fireworks Spectacular v. Premier Pyrotechnics, 147 F.Supp.2d 1057, 1065 (D.Kan.2001). The plaintiff has “the burden of producing some evidence that the information ... provided to defendants meets the definition of a trade secret.” MomsWin, LLC v. Lutes, 2003 WL 21554944, at *6 (D.Kan. Jul.8, 2003) (citing Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 661 (4th Cir.1993); qad, inc. v. ALN Assocs., Inc., 1990 WL 106540, at *2 (N.D.Ill.1990)). The plaintiffs burden is not met by general allegations: Plaintiffs must describe the subject matter of their alleged trade secrets in sufficient detail to establish each element of a trade secret. See BioCore, Inc. v. Khosrowshahi, 96 F.Supp.2d 1221, 1229 (D.Kan.2000); Utah Med. Prods., Inc. v. Clinical Innovations Assocs., Inc., 79 F.Supp.2d 1290, 1312-13 (D.Utah 1999); Pulsecard, Inc. v. Discover Card Servs., Inc., 1996 WL 137819, at *3 (D.Kan. Mar.5, 1996); AMP, Inc. v. Fleischhacker, 823 F.2d 1199, 1203 (7th Cir.1987) (failure to identify specific trade secrets precludes injunctive relief against threatened disclosure); Julie Research Lab., Inc. v. Select Photographic Eng’g. Inc., 810 F.Supp. 513, 519 (S.D.N.Y.1992) (plaintiff bears burden of identifying trade secrets in detail); qad, inc., 1990 WL 106540, at *2 (dismissal on account of persistent failure to identify trade secrets). Although plaintiffs are not required" }, { "docid": "4152313", "title": "", "text": "concerning the specifics of customers with whom he came into contact and sales that he made. The computerized lists and Mr. Sutcliffe’s logbook (collectively referred to as plaintiffs’ “customer lists”) include some or all of the following information with regard to each customer: the name, address, and phone number of the customer; the “contact person”; the amount of money previously spent; a sight survey concerning the size of explosives that can be shot in the customer’s area; and general notes concerning anything that could be done to improve the customer’s show in the future. In 1998, Mr. Sutcliffe left his employment with plaintiffs to start his own fireworks business, defendant Premier Pyrotechnics. Mr. Sutcliffe started Premier Pyrotechnics with the intention of taking customers from and competing directly with plaintiffs. Premier Pyrotechnics is now in direct competition with plaintiffs and services several of plaintiffs’ former customers. II. Conclusions of Law A preliminary injunction is an extraordinary remedy that is granted as the exception rather than the rule. See Buca, Inc. v. Gambucci’s, Inc., 18 F.Supp.2d 1193, 1200 (D.Kan.1998) (citing GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.1984)). “The main purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits in order for the trial court to render a meaningful decision.” Id. at 1200-01 (citing Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.1992)). The determination whether to grant a preliminary injunction rests within the sound discretion of the trial court. See United States v. Power Eng’g Co., 191 F.3d 1224, 1230 (10th Cir.1999) (reviewing the grant of a preliminary injunction for abuse of discretion). To prevail, plaintiffs must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; (3) the threatened harm outweighs the injury that an injunction may impose upon the opposing party; and (4) an injunction is not adverse to the public interest. See Kansas Health Care Assoc., Inc. v. Kansas Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536, 1542 (10th Cir.1994). The Tenth Circuit has adopted a" }, { "docid": "6228816", "title": "", "text": "great deal of time, effort and expense in developing the lists and treats the lists as confidential in its business, the lists may be entitled to trade secret protection.” Robert B. Vance & Assocs., Inc. v. Baronet Corp., 487 F.Supp. 790, 799 (N.D.Ga.1979). Fireworks Spectacular, Inc. v. Premier Pyrotechnics, Inc., 86 F.Supp.2d 1102, 1106 (D.Kan.2000). Another consideration is what other detailed information is compiled with the customer lists; “Detailed records, however, regarding such information as purchasing patterns, sales volumes and payment histories may be a trade secret.” BioCore, Inc., 96 F.Supp.2d at 1235 (citing All West Pet Supply Co. v. Hill’s Pet Prod. Div., 840 F.Supp. 1433, 1438 (D.Kan.1993)). Rather than requiring complete secrecy, Kansas law only requires the trade secret owner to “exercise reasonable efforts under the circumstances to maintain its secrecy.” Fireworks Spectacular v. Premier Pyrotechnics, 107 F.Supp.2d 1307, 1308 (D.Kan.2000). “ ‘[EJven if the plaintiff establishes the existence of a valuable trade secret which has been subject to reasonable efforts to maintain secrecy, the plaintiff still must establish that there has been a misappropriation of the trade secret by the defendant.’ ” Airport Systems Intern., Inc. v. Airsys ATM, Inc., 2001 WL 1718274, *5 (D.Kan.2001) (quoting Pulsecard, Inc. v. Discover Card Servs., Inc., 1996 WL 137819 *3 (D.Kan.1996) (citations omitted)). The Kansas Trade Secrets Act defines “Misappropriation” in these terms: (2) “Misappropriation” means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired. by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means- to acquire knowledge of the trade secret; or (B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who had utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a" } ]

[ { "docid": "22639003", "title": "", "text": "Ct. Cl. 115 (1977); Ricker v. United States, supra. Regulations prescribe that OERs are to be objective and prepared in a certain way. If a particular officer’s OER has not been so prepared and that defect could have resulted in his nonselection for promotion followed by discharge, this is legal and factual error and an injustice to the officer as well. If he is not made whole by correction of his record, we can and will protect the citizen-soldier’s legal rights if he is claiming lost pay and reinstatement. \"It is established, of course, that federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations.” Matlovich v. Secretary of Air Force, 591 F. 2d 852 (1978). We do not believe that defendant disagrees with the authority of this general proposition or denies that plaintiff basically fits within the perimeters of this doctrine. Defendant does contend, however, that there is a further consideration which must be dealt with before plaintiff is entitled to relief. In this case defendant asserts that it must be determined whether the error and injustice actually caused plaintiffs nonselections for promotion and his separation from the Air Force. Defendant rightly points out that when the first three temporary selection boards considered plaintiffs selection folder that they were unaware it contained invalid OERs which would later be voided by the Correction Board. When the later temporary and permanent boards considered plaintiff, these OERs had been removed but the file contained no explanation and the earlier passovers were still of record. Defendant reasons from this that the passovers by the selection boards should not be set aside unless plaintiff shows a conclusive causal connection. In other words, it is argued that plaintiff must show that \"but for” the error and injustice, unexplained to the selection boards, he \"would or probably would have been selected.” Stated in reverse, plaintiff must show that the defects in his file alone led to the nonpromotion decisions and to his discharge. Defendant has cited only one case where an officer has" } ]

[ { "docid": "21078680", "title": "", "text": "facie case, there was no substantial nexus or connection.” Id. Even though the corrections board had erroneously applied the discarded “but for” test, the court proceeded to the merits of the dispute as in Hary, deciding that the plaintiff had met his burden. Id. at 176. Turning to the government’s case, the court asked the quintessential military promotion question: whether it “is unlikely that he [Engels] would have been promoted in any event.” Id. After an extensive examination of the details concerning the relative merits of Evensen’s promotion prospects, the court concluded that the government had failed to cany its end burden, and that Even-sen thus could not be deemed properly passed over by his selection boards. Id. at 178. Thus, as in Hary, the court decided the merits of the promotion issue, and concluded that the officer must be reinstated with back pay until such a time as he was correctly discharged. Id. at 180. From this body of law, we can reach certain judgments, at least insofar as they pertain to cases arising on similar facts before SSBs were available to assist in the officer selection process. Instances of fundamental error, at least those affecting the composition of the deciding body, are not susceptible to review under the harmless error test. See Doyle, 220 Ct.Cl. 285, 599 F.2d 984 (1979); Evensen, 228 Ct.Cl. 207, 654 F.2d 68 (1981). Presumably because the civilian corrections board can correctly and assuredly measure the depth of the wrong in such cases, that is, when there can be no doubt that the error undermines the outcome, the remedy of voided passovers, reinstatement and back pay follows as of course. See, e.g., Doyle, 599 F.2d at 1004. In cases that pit the officer against his military superiors in the debate over whether the officer is relatively more qualified than other officers competing for promotion, our predecessor court had little choice but to formulate and employ either the “but for” test or the “harmless error” test, in order to analyze the facts at hand. As the opinions in the foregoing cases make quite clear, it" }, { "docid": "15940827", "title": "", "text": "first nonselection on October 18, 1976, should have put him on notice to act to correct any alleged errors in the OERs which might have contributed to his failure to be promoted. Pepper cites three cases which he argues show that the Claims Court has considered the claims of officers arising from defective OERs when there were delays in those cases equal to or greater than his own delay. In one of these cases, Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704 (1980), the court did not mention the affirmative defense of laches and thus the case has no bearing on a case such as the one at bar in which the defense is raised. Similarly, in Horn v. United States, 230 Ct.Cl. 18, 671 F.2d 1328 (1982), the defense of laches was not raised, although we note that Horn was also different from Pepper’s case in that timely challenges to each defective OER were made. The claim before the Claims Court in Horn was not to the defective OERs, instead the issue was that the selection board had improperly considered the expunged OERs. The suit in Horn was timely filed after the selection board’s decision was rendered. In the third case cited by Pepper, Riley v. United States, 221 Ct.Cl. 308, 608 F.2d 441 (1979), the defense of laches was raised, and it was decided against the government. Riley received defective OERs in 1968 and 1969 and waited until immediately after his first nonselection to successfully challenge them by petitioning the Officer Personnel Records Review Board (OPRRB). While waiting for the Air Force Board for the Correction of Military Records to expunge his records of the defective OERs voided by the OPRRB, Riley was passed over a second time by a promotion selection board. The OERs were not before the final promotion board, but it was apprised of the fact that he had been passed over earlier. Riley immediately filed suit in the Claims Court to challenge the procedural irregularities inherent in expunging OERs but retaining records before a promotion board containing damaging information that resulted from" }, { "docid": "9401635", "title": "", "text": "DAVIS, Judge, delivered the opinion of the court: Plaintiff Geoffrey P. Engels is a graduate of the Air Force Academy who entered active duty in the Air Force as a second lieutenant on June 6, 1962. He served continuously and was promoted to permanent captain on June 6, 1969. He was considered for promotion to permanent major twice, in August 1975 and November 1976. Upon being passed over by both selection boards, he was honorably discharged on June 30, 1977 as required by 10 U.S.C. §§ 8299(h) and 8303(d) (1976). Plaintiff then brought this suit in October 1977 challenging those passovers and his resulting discharge, seeking reinstatement to active duty, back pay, and deletion of two officer effectiveness reports (OERs) from his record. A partial trial was held, after which the trial judge concluded that plaintiff should exhaust his administrative remedy before the Air Force Board for Correction of Military Records (Correction Board) with respect to his initial request for mitigating additions to his April 1973 and December 1974 OERs. Without adopting the trial judge’s opinion or findings, the court agreed with his recommendation and suspended proceedings here to allow consideration of the matter by the Correction Board. That tribunal corrected Engels’s records by attaching the proffered explanatory letters to the two challenged OERs. The Board found, however, that even so there was no basis for promoting him to major, or for setting aside his passovers. A short further trial was held in this court, and the trial judge concluded, on the whole case, that plaintiff is entitled to the relief he ultimately sought. Defendant seeks review. We rule for plaintiff. I The standards Officers claiming in this court that they have been improperly selected out, after passovers, must first show that the service committed a legal error (or perhaps a serious injustice). See Horn v. United States, ante at 18; Evensen v. United States, 228 Ct. Cl. 207, 654 F.2d 68 (1981); Grieg v. United States, 226 Ct. Cl. 258, 640 F.2d 1261 (1981); Gruendyke v. United States, 226 Ct. Cl. 193, 639 F.2d 745 (1981); Hary v. United" }, { "docid": "9401636", "title": "", "text": "opinion or findings, the court agreed with his recommendation and suspended proceedings here to allow consideration of the matter by the Correction Board. That tribunal corrected Engels’s records by attaching the proffered explanatory letters to the two challenged OERs. The Board found, however, that even so there was no basis for promoting him to major, or for setting aside his passovers. A short further trial was held in this court, and the trial judge concluded, on the whole case, that plaintiff is entitled to the relief he ultimately sought. Defendant seeks review. We rule for plaintiff. I The standards Officers claiming in this court that they have been improperly selected out, after passovers, must first show that the service committed a legal error (or perhaps a serious injustice). See Horn v. United States, ante at 18; Evensen v. United States, 228 Ct. Cl. 207, 654 F.2d 68 (1981); Grieg v. United States, 226 Ct. Cl. 258, 640 F.2d 1261 (1981); Gruendyke v. United States, 226 Ct. Cl. 193, 639 F.2d 745 (1981); Hary v. United States, 223 Ct. Cl. 10, 618 F.2d 704 (1976); Guy v. United States, 221 Ct. Cl. 427, 608 F.2d 867 (1979); Riley v. United States, 221 Ct. Cl. 308, 608 F.2d 441 (1979); Doyle v. United States, 220 Ct. Cl. 285, 599 F.2d 984 (1979), cert. denied, 446 U.S. 982 (1980); Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979); Skinner v. United States, 219 Ct. Cl. 322, 594 F.2d 824 (1979). For those cases, like this one, in which the challenge rests on defective OERs or an incomplete or inadequate military record, the next question for us is whether the error is causally linked with the passover — in summary terms, was it prejudicial or harmless? See the decisions cited supra, except Doyle, Evensen, and Horn. To hold the passover void, the court need not find that the officer would in fact have actually been promoted in the absence of the error, but merely that promotion was not definitely unlikely or excluded. On the former problem — the existence of the" }, { "docid": "15762783", "title": "", "text": "this overlapping policy “is not legally objectionable per se”. On the contrary, we think that this practice was legally erroneous (because it violated statutes, the clear purpose of a regulation, and the prevailing letter of instruction) — as well as unjust. . To the extent that Coughlin v. Alexander, 446 F.Supp. 1024, 1026-27 (D.D.C.), aff'd without opinion, 589 F.2d 1115 (D.C.Cir.1978), may suggest that such overlapping is permissible for standby boards of our type, we differ with that view. See Doyle, supra, 220 Ct.Cl. at-, 599 F.2d at 997. . As well as in the cases following Sanders, e. g., Hary v. United States, 223 Ct.Cl. -, 618 F.2d 704 (1980); Grieg v. United States, 226 Ct. Cl.-, 640 F.2d 1261 (1981). . Doyle also said: “Where the error is the violation of a provision designed to protect against a general form of prejudice, and there is no way of determining whether actual prejudice was involved in highly subjective and secret decision-making we conclude that this right [“consideration by boards which are constituted squarely in accordance with statute and regulations”] was not had.” 220 Ct.Cl. at-, 599 F.2d at 997-98. . At the most, defendant says, the matter should be remanded to the Correction Board to determine whether or not to apply the “harmless error” doctrine to the actions of the 1976 and 1977 regular selection boards (which had considered the two OERs voided by the Correction Board). . Our determination that plaintiff effectively sought voiding by the Correction Board of the prior passovers removes this case from our holdings in DeBow v. United States, 193 Ct.Cl. 499, 503, 434 F.2d 1333, 1335 (1970), cert. denied, 404 U.S. 846, 92 S.Ct. 150, 30 L.Ed.2d 84 (1971) and like decisions, in which we refused to consider issues or relief not raised before or sought from (“explicitly or implicitly”) the Correction Board. . It has some bearing on our interpretation of the Correction Board’s actions as referring plaintiff for de novo consideration that two of the five voting members of the Board would have gone further and would have invalidated or upgraded" }, { "docid": "21078692", "title": "", "text": "passover decisions. In eases in which the error is found to be egregious, when the Air Board is sure of the need to void previous passovers, we may assume the Air Board will exercise its full authority. For such cases, the harmless error test is unnecessary and inapt, as the Court of Claims reasoned long ago in Doyle and Evensen. See Doyle, 220 Ct.Cl. 285, 599 F.2d 984 (Ct.Cl.1979), Evensen, 228 Ct.Cl. 207, 654 F.2d 68 (Ct.Cl.1981). But in cases in which the Air Board lacks the confidence to make a fundamentally military promotion decision, such as this one, the Air Board is not obligated to resolve an officer’s promotion prospects by performing a harmless error analysis. Instead, the Air Board may recommend that the fundamental promotion determination be made by the SSB. If the SSB decides in favor of the officer, that decision binds the Secretary, and the Air Board will make the necessary corrections to the record, as specified in section 628. If the SSB determines that nonselection is appropriate, then, as occurred in this case, the Air Board stands ready to receive and decide any complaints an officer may assert concerning the process and decision of an SSB. The government advances its view of the Air Board’s authority as preserving all of the Air Board’s section 1552 powers, while at the same time extricating the courts and the civilian corrections boards from the unwelcome situation in which passover adjudication placed them before the enactment of section 628. Nothing in the government’s argument, or in our decision in this case, limits in any way the authority and duty of the Air Board to correct the substantive contents of an officer’s record as it exists before a promotion board, including SSBs. Against the government’s arguments, Porter raises several protests. First, Porter faults the government for shifting legal theories in the course of the long court proceedings in this case. According to Porter, the government agreed that this is a harmless error case early on, and the government cannot prevail because, according to Porter, it has never rebutted Porter’s prima" }, { "docid": "18074342", "title": "", "text": "(1976); Guy v. United States, 221 Ct.Cl.-, 608 F.2d 867 (1979); Riley v. United States, 221 Ct.Cl.-, 608 F.2d 441 (1979); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984 (1979), cert, denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 837 (1980); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979); Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979). For those cases, like this one, in which the challenge rests on defective OERs or an incomplete or inadequate military record, the next question for us is whether the error is causally linked with the passover— in summary terms, was it prejudicial or harmless? See the decisions cited supra, except Doyle, Evensen, and Horn. To hold the passover void, the court need not find that the officer would in fact have actually been promoted in the absence of the error, but merely that promotion was not definitely unlikely or excluded. On the former problem — the existence of the error — the burdens of going forward and of persuasion lie squarely with the claimant. See, e.g., Hary v. United States, supra, 223 Ct.Cl. at-, 618 F.2d at 706-708. On the second step — the causal nexus — we have said broadly, that the plaintiff must show nexus in the sense “that the defect substantially affected the decision to separate him or relieve him from active duty, or at least he must set forth enough material to impel the court to direct a further inquiry into the nexus * * *.” Hary, 223 Ct.Cl. at -, 618 F.2d at 706-07. What we meant, more precisely, is that plaintiff, to prevail, must make at least a prima facie showing of a substantial connection between the error and the passover. But the end-burden of persuasion falls to the Government to show harmlessness— that, despite the plaintiff’s prima facie case, there was no substantial nexus or connection. The reasons for this division of end-burden are twofold. First, when nexus is considered, plaintiff has already established the existence of the Government’s error; second, the defendant, with its far greater" }, { "docid": "21294808", "title": "", "text": "8, 1974 is non-objective in that it does not accurately reflect applicant’s job performance and promotion potential; and (3) The basis for writing the OER for the period February 9, 1974 through February 8, 1975 admittedly was taken from other OERs in violation of AFR 36-10, para. 10-5(c). ’ ' Plaintiffs application was denied without a hearing on June 30,1978. This suit followed. In this action, now before us on plaintiffs motion for summary judgment, plaintiff challenges the Corrections Board’s decision on the grounds that its decision was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Plaintiff argues that his passovers by the 1975 and 1976 selection boards were unjust and, therefore, his removal predicated on these two passovers was illegal. It is well established in military passover cases that a plaintiff requesting back pay due to a separation or relief from active duty must show both that (1) there was a material legal error or an injustice in the proceedings of the Corrections Board, or other entity within the military department, which led to the action against him, and (2) that there is an adequate nexus between the error or injusticé and the adverse action (e.g., passover and nonselection for promotion). Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704 (1980); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979). See also Yee v. United States, 206 Ct.Cl. 388, 512 F.2d 1383 (1975). In reviewing passover cases, we are mindful that there is a strong presumption of regularity attaching to the actions of public officers, including administrators of the military. Sanders v. United States, supra, 219 Ct.Cl. at 302, 594 F.2d at 813. Because we find that the Corrections Board’s decision in failing to void the three contested OERs was not arbitrary, capricious, unsupported by substantial evidence, or contrary to law, it is not necessary for us to reach the nexus requirement. Plaintiffs initial allegation concerns the OER dated March 1, 1972 through February 28, 1973, which he contends was downgraded from a 9-4 to an 8-3 as the result of improper \"command influence”" }, { "docid": "21294809", "title": "", "text": "led to the action against him, and (2) that there is an adequate nexus between the error or injusticé and the adverse action (e.g., passover and nonselection for promotion). Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704 (1980); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979). See also Yee v. United States, 206 Ct.Cl. 388, 512 F.2d 1383 (1975). In reviewing passover cases, we are mindful that there is a strong presumption of regularity attaching to the actions of public officers, including administrators of the military. Sanders v. United States, supra, 219 Ct.Cl. at 302, 594 F.2d at 813. Because we find that the Corrections Board’s decision in failing to void the three contested OERs was not arbitrary, capricious, unsupported by substantial evidence, or contrary to law, it is not necessary for us to reach the nexus requirement. Plaintiffs initial allegation concerns the OER dated March 1, 1972 through February 28, 1973, which he contends was downgraded from a 9-4 to an 8-3 as the result of improper \"command influence” on the rating officer. In a leading military passover case, Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979), we stated that the purpose of officer evaluations would be substantially thwarted if improper \"command influence” by superiors was allowed to bear on the rater’s decision. The evidence must clearly demonstrate that the rater’s prerogatives were violated by undue pressure or coercion. Plaintiff has failed to make such a demonstration. This OER was prepared by Lieutenant Colonel Scheid and indorsed by Colonel Barrett. The principal evidence relied upon by plaintiff to show that the rating was not objective was (1) a statement made by Lieutenant Colonel Scheid to plaintiff that on the OER he submitted for this period, he rated plaintiff a 9-4, and that Colonel Barrett instructed him to modify the rating to an 8-3; (2) a letter written by plaintiff in which he confronted Colonel Barrett with Lieutenant Colonel Scheid’s statement; and (3) a response to that letter in which Colonel Barrett acknowledged the truth of Lieutenant Colonel Scheid’s statement. The evidence" }, { "docid": "21078642", "title": "", "text": "back pay until he is deemed passed over twice by lawful process and lawfully discharged. Id. at 9. In reaching its conclusion, the court took its direction from a series of Court of Claims cases involving actions by civilian corrections boards that predated the enactment of 10 U.S.C. § 628. The cases relied on by the court in the December 1992 and October 1994 decisions, as chronologically decided, are Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (Ct.Cl.1979); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984 (Ct.Cl.1979); Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704 (Ct.Cl.1980); Evensen v. United States, 228 Ct.Cl. 207, 654 F.2d 68 (Ct.Cl.1981); and Engels v. United States, 230 Ct.Cl. 465, 678 F.2d 173 (Ct.Cl.1982). The government moved promptly for clarification of the court’s October 31, 1994, order, asserting that it would be improper to order Porter’s reinstatement in light of the two passover decisions by the 1993 SSBs that were still in effect, although these decisions remained subject to review by the Air Board for potential procedural flaws pursuant to the court’s remand order. In response, the court revised its order, as follows: The AFBCMR having failed to do so explicitly, either in 1993 when it vacated the 1986 SSBs’ passovers, or in 1985 when it vacated the CY 84B and CY 85A selection boards’ passovers, the court assumes that Mr. Porter’s records have been corrected constructively to show reinstatement in active duty at the rank of first lieutenant as of August 31, 1985, up until at least six months after his second passover by the 1993 SSB, see 10 U.S.C. § 631(a)91, (and longer if the 1993 SSBs’ decisions are voided by the Secretary at the recommendation of the AFBCMR, or by this court). The court also assumes that, as the result of such constructive duty, Mr. Porter is entitled to back pay for that period, calculated in accordance with law. If the AFBCMR declines to recognize plaintiffs entitlement to such correction or benefits, the court will exercise its own authority to do so. Porter v. United States," }, { "docid": "21078678", "title": "", "text": "of the connection between the defective OERs and the likelihood of plaintiffs selection for promotion,” id. at 710, it then assessed and compared comparative rating scores and records of Hary and other officers. Id. at 710-11. The court ultimately concluded that “it is quite likely that the plaintiff would have failed to be promoted to permanent major in 1971 and 1972 even if the [defective] OERs had not been in his record.” Id. at 711. In short, after assessing the government’s rebuttal to the officer’s prima facie case, the error of the two OERs was held to be harmless. Id. (“Any error in the selection process was therefore harmless”). We need only pause briefly over Evensen v. United States, 228 Ct.Cl. 207, 654 F.2d 68 (Ct.Cl.1981), since it is a reprise of Doyle. In Evensen, the officer was initially passed over by regular selection boards. On petition from Major Evensen, the Army corrections board agreed that his passovers were infected with erroneous OERs. The board recommended that the officer be presented, on a corrected record, to a STAB for promotion consideration. The STAB, however, was populated with the same officers that had composed the initial selection boards, quite in violation of applicable regulations. The Court of Claims held, citing Doyle, that the harmless error rule of Sanders is inapplicable to the error of composition of the STAB, and that, as in Doyle, the correct remedy is automatic voiding of the initial passovers. Evensen, 654 F.2d at 72. Our recitation of the pertinent Court of Claims eases ends with Engels v. United States, 230 Ct.Cl. 465, 678 F.2d 173 (Ct.Cl. 1982). Like Hary, Engels did not involve fundamental process error in the composition of the board, but instead necessitated application of the harmless error rule. The court restated the rule to clarify that the burden on the officer is to make a prima facie showing of nexus between the alleged error in his record and the passover decision. Engels, 678 F.2d at 175. The final burden of persuasion “falls to the Government to show harmlessness — that, despite the plaintiff’s prima" }, { "docid": "1834358", "title": "", "text": "(Fed.Cir.1986), cert. denied, 479 U.S. 853, 107 S.Ct. 188, 93 L.Ed.2d 121 (1986); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 811 (1979). In order to meet this burden, a plaintiff must prove two elements: (i) a legal error or injustice in the correction board proceeding; and (ii) an adequate nexus or link between the error and some adverse action such as a passover or nonselection for promotion. Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704, 706 (1980). The first element, commission of a legal error by an administrative board, can be based on either “legal error or material factual error, or injustice amounting to such error____” Sanders, 594 F.2d at 813. An “injustice” might be based on the failure by the Correction Board to correct either a gross material error of fact or to correct an action contrary to all evidence. Id. The failure to correct such errors, however, must be “arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff, and with monetary consequences. In such event, the abuse of administrative discretion rises to the level of legal error____” Id. The second element is a nexus requirement. The plaintiff must either show that the error substantially affected the decision to separate him from active duty, or he must produce enough evidence to justify further inquiry by the court into the nexus between the legal error and the adverse action. Hary, 618 F.2d at 707. The standard articulated above is highly deferential toward the correction board’s decision. It reflects the fact that it is the executive branch, and not the courts, that are responsible for running the military. Grieg v. United States, 226 Ct.Cl. 258, 640 F.2d 1261, 1268 (1981) (citing Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 97 L.Ed. 842 (1953)). Even if this court would come to a different conclusion based on the same set of facts, we will not generally overturn a decision by a military review board absent a showing of legal error. Sanders, 594 F.2d at 814. The" }, { "docid": "21078691", "title": "", "text": "Air Board from refusing to void previous passovers when recommending that the officer meet an SSB for an assessment of his relative promotion prospects, based on his cleansed record and records of officers who met the original boards along with the protesting officer. In this respect, we agree with the government’s reading of the pertinent statutes. The government also complains that the insistence of the Court of Federal Claims that the Air Board perform a harmless error analysis itself, and the court’s sua sponte performance of that task in the face of the unwillingness of the Air Board, carries the civilian Air Board and the courts into the impermissible zone of military decisions that are reserved to the military, absent legal error in the promotion decisions. From the government’s perspective, the solution to unwanted intrusion of the courts into the military business of promotion is to recognize that the harmless error test from the pre-DOPMA cases is unnecessary for fair consideration and decision of applications to the Air Board in challenging the legality of previous passover decisions. In eases in which the error is found to be egregious, when the Air Board is sure of the need to void previous passovers, we may assume the Air Board will exercise its full authority. For such cases, the harmless error test is unnecessary and inapt, as the Court of Claims reasoned long ago in Doyle and Evensen. See Doyle, 220 Ct.Cl. 285, 599 F.2d 984 (Ct.Cl.1979), Evensen, 228 Ct.Cl. 207, 654 F.2d 68 (Ct.Cl.1981). But in cases in which the Air Board lacks the confidence to make a fundamentally military promotion decision, such as this one, the Air Board is not obligated to resolve an officer’s promotion prospects by performing a harmless error analysis. Instead, the Air Board may recommend that the fundamental promotion determination be made by the SSB. If the SSB decides in favor of the officer, that decision binds the Secretary, and the Air Board will make the necessary corrections to the record, as specified in section 628. If the SSB determines that nonselection is appropriate, then, as occurred" }, { "docid": "21078641", "title": "", "text": "As to whether the 1993 SSB proceedings contained inadequate benchmark records that were improperly rescored, as Porter alleged, the court remanded the case once again to the Air Board. The Air Board was ordered to review the full record before the 1993 SSBs to ensure that Porter’s nonselections were not arbitrary, capricious, unsupported by substantial evidence, or legally erroneous. Id. at 9. In addition, the court determined that the Air Board had impermissibly given the 1993 SSBs the power to determine whether the flawed data before the 1986 SSBs amounted to harmless error, rather than making that determination itself before recommending that the 1993 SSBs decide anew whether Porter should have been promoted. See id. at 7-8. The court determined that the Air Board, by referring Porter’s case to the SSBs, necessarily voided the original selection boards’ passovers and thereby constructively reinstated Porter, thus entitling him to back pay. See id. The court therefore ordered that Porter’s records be corrected to show reinstatement as of the day of his discharge in 1985 and entitlement to back pay until he is deemed passed over twice by lawful process and lawfully discharged. Id. at 9. In reaching its conclusion, the court took its direction from a series of Court of Claims cases involving actions by civilian corrections boards that predated the enactment of 10 U.S.C. § 628. The cases relied on by the court in the December 1992 and October 1994 decisions, as chronologically decided, are Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (Ct.Cl.1979); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984 (Ct.Cl.1979); Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704 (Ct.Cl.1980); Evensen v. United States, 228 Ct.Cl. 207, 654 F.2d 68 (Ct.Cl.1981); and Engels v. United States, 230 Ct.Cl. 465, 678 F.2d 173 (Ct.Cl.1982). The government moved promptly for clarification of the court’s October 31, 1994, order, asserting that it would be improper to order Porter’s reinstatement in light of the two passover decisions by the 1993 SSBs that were still in effect, although these decisions remained subject to review by the Air Board" }, { "docid": "18074340", "title": "", "text": "OPINION DAVIS, Judge: Plaintiff Geoffrey P. Engels is a graduate of the Air Force Academy who entered active duty in the Air Force as a second lieutenant on June 6, 1962. He served continuously and was promoted to permanent captain on June 6,1969. He was considered for promotion to permanent major twice, in August 1975 and November 1976. Upon being passed over by both selection boards, he was honorably discharged on June 30, 1977 as required by 10 U.S.C. §§ 8299(h) and 8303(d) (1976). Plaintiff then brought this suit in October 1977 challenging those passovers and his resulting discharge, seeking reinstatement to active duty, back pay, and deletion of two officer effectiveness reports (OERs) from his record. A partial trial was held, after which the trial judge concluded that plaintiff should exhaust his administrative remedy before the Air Force Board for Correction of Military Records (Correction Board) with respect to his initial request for mitigating additions to his April 1973 and December 1974 OERs. Without adopting the trial judge’s opinion or findings, the court agreed with his recommendation and sus pended proceedings here to allow consideration of the matter by the Correction Board. That tribunal corrected Engels’s records by attaching the proffered explanatory letters to the two challenged OERs. The Board found, however, that even so there was no basis for promoting him to major, or for setting aside his passovers. A short further trial was held in this court, and the trial judge concluded, on the whole case, that plaintiff is entitled to the relief he ultimately sought. Defendant seeks review. We rule for plaintiff. I The standards Officers claiming in this court that they have been improperly selected out, after passovers, must first show that the service committed a legal error (or perhaps a serious injustice). See Horn v. United States, Ct.Cl., 671 F.2d 1328 (1982); Evensen v. United States, 228 Ct.Cl. -, 654 F.2d 68 (1981); Grieg v. United States, 226 Ct.Cl. -, 640 F.2d 1261 (1981); Gruendyke v. United States, 226 Ct.Cl.-, 639 F.2d 745 (1981); Hary v. United States, 223 Ct.Cl. -, 618 F.2d 704" }, { "docid": "21078677", "title": "", "text": "be applied. In order to prevail, the claimant must show that the alleged defect in the proceedings substantially affected the decision to separate him or relieve him from active duty, or at least he must set forth enough material to impel the court to direct a further inquiry into the nexus between the error or injustice and the adverse action. Hary, 618 F.2d at 707. Rather than remand the case to the Air Board for application of the proper test, the Court of Claims applied the test itself. In so doing, the court held that two of the contested OERs satisfied the burden placed on the claimant. Id. at 708. Next, the court assessed whether the error caused by the one faulty OER was “harmless” to the passover decisions. To do so required the court to “canvas for ourselves the evidence in the administrative record in the light of the arguments and analyses offered by the parties.” Id. at 709. Although the court disclaimed operating as a “super selection board in passing on this problem of the connection between the defective OERs and the likelihood of plaintiffs selection for promotion,” id. at 710, it then assessed and compared comparative rating scores and records of Hary and other officers. Id. at 710-11. The court ultimately concluded that “it is quite likely that the plaintiff would have failed to be promoted to permanent major in 1971 and 1972 even if the [defective] OERs had not been in his record.” Id. at 711. In short, after assessing the government’s rebuttal to the officer’s prima facie case, the error of the two OERs was held to be harmless. Id. (“Any error in the selection process was therefore harmless”). We need only pause briefly over Evensen v. United States, 228 Ct.Cl. 207, 654 F.2d 68 (Ct.Cl.1981), since it is a reprise of Doyle. In Evensen, the officer was initially passed over by regular selection boards. On petition from Major Evensen, the Army corrections board agreed that his passovers were infected with erroneous OERs. The board recommended that the officer be presented, on a corrected record," }, { "docid": "21078681", "title": "", "text": "on similar facts before SSBs were available to assist in the officer selection process. Instances of fundamental error, at least those affecting the composition of the deciding body, are not susceptible to review under the harmless error test. See Doyle, 220 Ct.Cl. 285, 599 F.2d 984 (1979); Evensen, 228 Ct.Cl. 207, 654 F.2d 68 (1981). Presumably because the civilian corrections board can correctly and assuredly measure the depth of the wrong in such cases, that is, when there can be no doubt that the error undermines the outcome, the remedy of voided passovers, reinstatement and back pay follows as of course. See, e.g., Doyle, 599 F.2d at 1004. In cases that pit the officer against his military superiors in the debate over whether the officer is relatively more qualified than other officers competing for promotion, our predecessor court had little choice but to formulate and employ either the “but for” test or the “harmless error” test, in order to analyze the facts at hand. As the opinions in the foregoing cases make quite clear, it makes no sense to order relief for a corrections application that alleges an error lacking any impact on the passover decision. See, e.g., Sanders, 594 F.2d at 813. But because error that is not “harmless” begs for correction, the decision and rule in Sanders was necessary to decide the fundamental promotion/non-promotion issue. Id. at 816. The Court of Claims candidly recognized that the “but for” test urged by the government would turn the court (as well as the corrections board) into a super selection board, and thus necessarily enmesh the court in the basic promotion issue when such a decision of a corrections board was challenged. Id. That the harmless error test would paradoxically force the civilian corrections boards and the court into the same obligation to make essentially military promotion decisions became quite evident from the court’s decisions in Hary and Engels, which reflect judicial resolution of the fundamental promotion issue. Hary, 223 Ct.Cl. 10, 618 F.2d 704 (1980); Engels, 230 Ct.Cl. 465, 678 F.2d 173 (1982). With no statutory tool available to resolve" }, { "docid": "18074341", "title": "", "text": "with his recommendation and sus pended proceedings here to allow consideration of the matter by the Correction Board. That tribunal corrected Engels’s records by attaching the proffered explanatory letters to the two challenged OERs. The Board found, however, that even so there was no basis for promoting him to major, or for setting aside his passovers. A short further trial was held in this court, and the trial judge concluded, on the whole case, that plaintiff is entitled to the relief he ultimately sought. Defendant seeks review. We rule for plaintiff. I The standards Officers claiming in this court that they have been improperly selected out, after passovers, must first show that the service committed a legal error (or perhaps a serious injustice). See Horn v. United States, Ct.Cl., 671 F.2d 1328 (1982); Evensen v. United States, 228 Ct.Cl. -, 654 F.2d 68 (1981); Grieg v. United States, 226 Ct.Cl. -, 640 F.2d 1261 (1981); Gruendyke v. United States, 226 Ct.Cl.-, 639 F.2d 745 (1981); Hary v. United States, 223 Ct.Cl. -, 618 F.2d 704 (1976); Guy v. United States, 221 Ct.Cl.-, 608 F.2d 867 (1979); Riley v. United States, 221 Ct.Cl.-, 608 F.2d 441 (1979); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984 (1979), cert, denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 837 (1980); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979); Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979). For those cases, like this one, in which the challenge rests on defective OERs or an incomplete or inadequate military record, the next question for us is whether the error is causally linked with the passover— in summary terms, was it prejudicial or harmless? See the decisions cited supra, except Doyle, Evensen, and Horn. To hold the passover void, the court need not find that the officer would in fact have actually been promoted in the absence of the error, but merely that promotion was not definitely unlikely or excluded. On the former problem — the existence of the error — the burdens of going forward and of persuasion" }, { "docid": "21945501", "title": "", "text": "that \"Board decisions are subject to judicial review and can be set aside if they are arbitraiy, capricious or not based on substantial evidence.”); Berkley v. United States, 287 F.3d 1076, 1090-91 (Fed.Cir.2002) (addressing claim that reduction-in-force violated officers’ Fifth Amendment right to equal protection by taking into account racial and gender characteristics in selecting them for involuntary separation). . See, e.g., Richey v. United States, 322 F.3d 1317, 1325-26 (Fed.Cir.2003) (where discharge resulted from allegedly improper non-promotion decisions, court reviewed the military’s promotion procedures for compliance with 10 U.S.C. § 628); Porter, 163 F.3d at 1311-12 (same); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 814, 817 (1979) (where discharge resulted from improperly denied promotions, court concluded that the military had \"violated both the spirit and letter of the statute [10 U.S.C. § 3442(c), 8442(c) (1976) (repealed 1980)] and regulations.\"); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984, 996 (1979) (holding that promotion decision violated statutory requirement governing composition of selection board); see also Roth v. United States, 378 F.3d 1371, 1385 (Fed.Cir.2004) (noting that \"the test[s] or standards against which this court measures the military's conduct [such as failure to promote] are inherent: they are the applicable statutes and regulations” (quoting Adkins, 68 F.3d at 1323)). .See, e.g., Roth, 378 F.3d at 1386-87, 1393 (holding promotion decision was unlawful because \"Officer Effectiveness Reports” were adversely affected by violation of Air Force Regulation 36-10; requiring Air Force to reevaluate promotion decision); Evensen v. United States, 228 Ct.Cl. 207, 654 F.2d 68 (1981) (holding that promotion decision violated regulatory requirement governing composition of selection board); Sanders, 594 F.2d at 817-18 (military's refusal to consider officer’s eligibility for promotion based on properly corrected record violated a regulation requiring correction of an officer's record upon a showing of \"probable material error or injustice.”). . See also Randall v. United States, 95 F.3d 339, 348 (4th Cir.1996) (\"The district court would have no authority to order the Secretary of the Army to promote Plaintiff to Lieutenant Colonel.”); Adkins, 68 F.3d at 1324 (an officer's \"prayer that the Court of" }, { "docid": "9401637", "title": "", "text": "States, 223 Ct. Cl. 10, 618 F.2d 704 (1976); Guy v. United States, 221 Ct. Cl. 427, 608 F.2d 867 (1979); Riley v. United States, 221 Ct. Cl. 308, 608 F.2d 441 (1979); Doyle v. United States, 220 Ct. Cl. 285, 599 F.2d 984 (1979), cert. denied, 446 U.S. 982 (1980); Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979); Skinner v. United States, 219 Ct. Cl. 322, 594 F.2d 824 (1979). For those cases, like this one, in which the challenge rests on defective OERs or an incomplete or inadequate military record, the next question for us is whether the error is causally linked with the passover — in summary terms, was it prejudicial or harmless? See the decisions cited supra, except Doyle, Evensen, and Horn. To hold the passover void, the court need not find that the officer would in fact have actually been promoted in the absence of the error, but merely that promotion was not definitely unlikely or excluded. On the former problem — the existence of the error — the burdens of going forward and of persuasion lie squarely with the claimant. See, e.g., Hary v. United States, supra, 223 Ct. Cl. at 14-16, 618 F.2d at 706-708. On the second step — the causal nexus — we have said, broadly, that the plaintiff must show nexus in the sense \"that the defect substantially affected the decision to separate him or relieve him from active duty, or at least he must set forth enough material to impel the court to direct a further inquiry into the nexus * * Hary, 223 Ct. Cl. at 15-16, 618 F.2d at 706-07. What we meant, more precisely, is that plaintiff, to prevail, must make at least a prima facie showing of a substantial connection between the error and the passover. But the end-burden of persuasion falls to the Government to show harmlessness — that, despite the plaintiffs prima facie case, there was no substantial nexus or connection. The reasons for this division of end-burden are twofold. First, when nexus is considered, plaintiff has already established" } ]

[ { "docid": "13092921", "title": "", "text": "were working full lime or retired, as assumed by the Complaint. Id. at 12-13. . In Peterson v. H & R Block, the court found that class-wide reliance could be shown where a class of taxpayers were allegedly induced by standardized documents to purchase tax refund services for which they were ineligible. 174 F.R.D. 78, 85 (N.D.Ill. 1997). The Court reasoned that: \"It is inconceivable that the class members would rationally choose to pay a fee for a service they knew was unavailable ... The only logical explanation for such behavior is that the class members relied on [defendants'] representation that they could take advantage of [the service] by paying the requisite fee.” Id. Likewise in Garner v. Healy, the district court certified a class of consumers who had been defrauded by \"a standardized course of conduct involving uniform misrepresentations” into purchasing a \"car wax\" product that allegedly contained no wax. 184 F.R.D. 598, 602 (N.D.Ill. 1999). With respect to reliance and causation, the court concluded that \"if Plaintiffs paid money for a 'wax,' but instead received a worthless non-wax' product, then issues of proximate cause would be relatively simple to resolve on a classwide basis.\" Id. In LifeUSA, by contrast, the Third Circuit observed that the annuities at issue were \"not sold according to any standard, uniform, or scripted sales presentations.” 242 F.3d at 146. Rather, they were sold by independent agents who learned about the annuities through voluntary defendant-sponsored seminars and from written materials, many of which were neither uniform nor generated by the defendant. Id. Given these facts, the court in Li-feUSA found that plaintiffs' common law fraud claims would involve litigating the substance of oral statements made by thousands of independent agents to over 280,000 purchasers. Id. at 147. Moreover, unlike the present case, the Third Circuit noted that plaintiffs appeared to have abandoned their claim that a class should be certified based on pre-sale misrepresentations made to investors, in favor of a claim that post-sale quarterly accounting statements \"uniformly misrepresented the true interest rate credited to a purchaser's account.” Id. at 140-41. . In light" } ]

[ { "docid": "19318246", "title": "", "text": "Dannon Co., 255 F.R.D. 658, 669 (C.D.Cal.2009) (“For a class action, an inference of reliance arises as to the entire class only if the material misrepresentations were made to all class members.”). “An inference of reliance arises if material misrepresentations were ‘made to persons whose acts thereafter were consistent with reliance upon the representation.’” Id. Here, it is unlikely that a member of the putative class would have purchased the NobelDirect product without having been influenced by Defendants’ uniform marketing claims. Furthermore, it is reasonable to assume that no rational member of the putative class would have purchased and used the NobelDirect implant had he or she been aware of the alleged defective design. See Negrete v. Allianz Life Ins. Co. of N. Am., 238 F.R.D. 482, 492 (C.D.Cal.2006) (holding that the court could reasonably assume that no rational class member would have purchased the product had he or she known of the alleged misrepresentation). Accordingly, the identical nature of the alleged fraudulent representations supports a presumption of reliance. Moreover, assuming arguendo that a presumption of reliance is not warranted and individualized questions do exist — common issues predominate over any individualized reliance issues. See Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 737 (9th Cir. 2007) (affirming that “individual circumstances ... would not destroy predominance” of common issues); Schwarm v. Craighead, 233 F.R.D. 655, 663 (E.D.Cak 2006) (holding that — even in the face of “significant individual questions” of reliance— whether defendants’ standardized conduct amounted to actionable misrepresentations predominates the action). b. Individualized Issues of Causation Do Not Predominate Defendants argue that numerous factors play into the failure of surgical dental implants, and “[t]hus, a single classwide determination of plaintiffs declaratory relief claim is impossible.” (Opp’n 14.) Defendants propose that the existence of these other contributing or independent factors precludes class-wide liability. The Court disagrees. Whether or not other factors play into dental implant failures does not affect whether Defendants marketed and sold defective implants. This case is analogous to Wolin v. Jaguar Land Rover North America, LLC, where a plaintiff purchased a car with an" }, { "docid": "22192528", "title": "", "text": "F.3d at 178; In re Burlington Coat Factory, 114 F.3d at 1419 n. 8. Here plaintiffs’ claims do not involve an omission or misrepresentation that affected the value of a security in an efficient market. Therefore, a pre sumption of reliance based on this theory would be inappropriate. The District Court did not explicitly rule on whether reliance could be presumed. Instead the court observed that the investors’ trades “involved multiple circumstances which bear decisively upon the existence of reliance.” In re Merrill Lynch, et al. Sec. Litig., 191 F.R.D. 391, 395 (D.N.J.1999) (hereinafter “Merrill Lynch\"). On this point, the court found that some plaintiffs may have known about the defendants’ practice, belying their argument. Id. (“The degree of sophistication of the putative class members varies widely. Some, no doubt, were new to the world of NASDAQ trading; some were institutional investors.”). Plaintiffs contend that defendants’ uniform practice of executing trades at the NBBO price, even if better prices were reasonably available from alternative sources, and their failure to disclose the practice to their customers warrant a presumption of reliance. Defendants respond that at least some plaintiffs knew of the execution practice which nullifies their reliance. In support, they cite several news articles describing the practice as well as an SEC report noting that institutional investors (who fall within the putative class’s broad definition) used alternative electronic trading sources to obtain better prices for their trades. Br. of Appellees at 56-57. Because some plaintiffs knew or should have known of their practice, defendants assert that reasonable reliance on the alleged nondisclosure did not occur class-wide. For this reason, a presumption of reliance is arguably unavailable. See Straub v. Vaisman & Co., Inc., 540 F.2d 591, 595-98 (3d Cir.1976). While it seems apparent that some class members likely knew of defendants’ practice, this knowledge does not necessarily invalidate the presumption. When defendants fail to disclose material information about a uniform practice involving the purchase or sale of securities, plaintiffs may be entitled to a presumption of reliance which defendants may rebut. See, e.g., Affiliated Ute, 406 U.S. at 153-54, 92 S.Ct." }, { "docid": "16737983", "title": "", "text": "not require a plaintiff to prove actual reliance.”) Rather, the finder of fact must merely determine whether it was the intent of the defendant “that plaintiff rely on the deception.” Siegel v. Levy Org. Dev. Co., Inc., 153 Ill.2d 534, 180 Ill.Dee. 300, 304, 607 N.E.2d 194,198 (1992). Therefore, proof that each Plaintiff relied on Gerber’s advertisements is not required and is not an obstacle to class certification. See e.g., Peterson v. H & R Block Tax Servs., Inc., 174 F.R.D. 78, 84 (N.D.Ill.1997) (certifying class while rejecting assertion that ICFA requires actual reliance by plaintiff); Hill v. Gateway 2000, Inc., No. 96 C 4086,1996 WL 650631, at *12-13 (N.D.Ill. Nov. 7, 1996). Third, “it is well estabhshed that individual issues of reliance do not thwart class actions of common law fraud claims.” Sparano v. Southland Corp., No. 94 C 2098, 1996 WL 681273, at *3 (N.D.Ill.1996); Arenson v. Whitehall Convalescent and Nursing Home. Inc., 164 F.R.D. 659, 666 (N.D.Ill.1996) (certifying class despite individualized issues of reliance in common law fraud claims); Alexander v. Centrafarm Group, N.V., 124 F.R.D. 178, 186 (N.D.Ill.1988) (same). The court in Barkman v. Wabash, 674 F.Supp. 623, 635 (N.D.Ill.1987), reached this same conclusion and reasoned: [T]he fraud alleged in this case is based on conduct of defendants which was uniform as to all class members. No individual representations were made, nor were there any separate communications between defendants and individual class members____ All class members were faced with the same allegedly fraudulent statements____ Thus ... issues of personal reliance may be reserved for a determination of damages, if plaintiff proves his case. Here, as in Barkman, the class members were subject to standardized conduct. Gerber’s ads, although varied according to geography and medium, allegedly carried the same message: misrepresentation of the quality and ingredients in Gerber’s second and third-stage baby food products. Further, Gerber does not argue that the class Plaintiffs relied on any individual representations or communications. All allegedly fraudulent representations were conveyed through widely circulated and generalized advertisements. If some class members incurred more damage than others as a result of their actual" }, { "docid": "19116962", "title": "", "text": "sub-class by state. i. California Under California law, a class-wide presumption of reliance upon an allegedly misleading message may be appropriate in some cases. Plaintiffs urge the Court to “presume[ ] that all class members relied on Clorox’s odor superiority 'misrepresentation.” Reply at 10. Bizarrely, Plaintiffs cite a California Supreme Court case for the proposition that “[i]t is well-settled in the Ninth Circuit that class-wide reliance is presumed where a misrepresentation is ‘material.’ ” Id. It is possible that Plaintiffs meant to argue that California Supreme Court precedent governs the application of California law when federal courts apply it. Even if that were Plaintiffs’ intended argument, they read the case they cite for a much broader proposition than it supports. Plaintiffs appear, remarkably, to argue that any materially misleading product advertisement is automatically presumed under California law to reach and influence all of the product’s customers. See Id. (citing In re Tobacco II Cases, 46 Cal.4th 298, 326-27, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009)). The presumption established in Tobacco II was much more limited, and it applied only to reliance, not exposure. That is, it may be justified to presume that consumers who ae-tually saw a materially misleading advertisement relied upon it. However, Tobacco II does not mean that Plaintiffs are entitled to a presumption that every purchaser of Fresh Step during the class period was exposed to the misleading statements. Tobacco II involved cigarette advertising, and presumptions of exposure and reliance were justified by a “decades-long campaign of the tobacco industry to conceal the health risks of its product.” Tobacco II, 46 Cal.4th at 327, 93 Cal.Rptr.3d 559, 207 P.3d 20. Since Tobacco II, both California state courts and federal courts in the Ninth Circuit— when applying California law — have refused to presume so broadly in other contexts. See, e.g., Mazza, 666 F.3d at 595 (presumption of reliance not justified under California law where it was likely that “many class members were never exposed to the allegedly misleading advertisements”); ConAgra Foods, C 12-01633 CRB, 2014 WL 2702726, at *14 (N.D.Cal. June 13, 2014) (examining treatment of Tobacco" }, { "docid": "13092901", "title": "", "text": "means of establishing class-wide proof of damages. The availability of such generalized proof would be analogous to the claims made in Garner v. Healy, 184 F.R.D. 598 (N.D.Ill.1999), and Peterson v. H. & R. Block Tax Services, Inc., 174 F.R.D. 78 (N.D.Ill.1997), which the Ninth Circuit recognized in Poulos to be cases where reliance can be shown where it provides the “common sense” or “logical explanation” for the behav ior of plaintiffs and the members of the class. Poulos, 379 F.3d at 667-668. Here, plaintiffs have submitted evidence that Allianz’s FMOs and independent agents used standardized written marketing materials supplied by Allianz in selling the Allianz deferred annuities at issue in these cases. In particular, plaintiffs have offered evidence that Allianz prepared standardized consumer brochures and SOUs for each annuity product. Allianz apparently required both the purchaser of the annuity and the agent sign the SOU at time of sale. By signing the SOU, the purchaser stated that he or she had read and understood the information set forth therein, which had also been explained by the sales agent. Correspondingly, the agent’s signature evidenced that he or she had “not made statements that differ from the disclosure form.” This evidence of standardized written presentations, coupled with plaintiffs’ allegations that class members purchased annuity products far less valuable than other comparable products or the prices paid for them, adequately establishes proximate causation under Poulos at the certification stage. Because plaintiffs’ evidence may enable them to establish reliance and thus causation in this case, the Court finds that common issues regarding Allianz’s alleged overarching fraudulent scheme predominate over questions affecting only individual members of the nationwide class. See Krell v. Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am.), 148 F.3d 283, 314 (3d Cir.1998) (affirming the lower court’s conclusion that “[w]here many purchasers have been defrauded over time by similar misrepresentations, or by a common scheme to which alleged non-disclosures related, courts have found that the purchasers have a common interest in determining whether the defendant’s course of conduct is actionable”). Accordingly, plaintiffs have satisfied the commonality requirement of" }, { "docid": "6058001", "title": "", "text": "found similarly in a class action regarding H & R Block’s rapid refund/loan program. The Peterson court first noted that “courts will presume class members’ reliance when it is logical to do so or when the complaint’s allegations make reliance apparent.” Id. at 84-85. The Peterson court determined that where class members were induced to pay a fee for a service they were ineligible for (rapid tax refunds), the “only logical explanation for such behavior is that the class members relied on the RAL Fact Sheet’s representations that they could take advantage of RAL by paying the requisite fee.” Id. at 85. Finally, in Smith v. MCI Telecomm. Corp., 124 F.R.D. 665 (D.Kan.1989), the district court concluded that where RICO fraud claims were made on the basis of written documents (plans and addenda provided to employees), “the basic misrepresentation giving rise to the fraud claim is uniform.” Id. at 678. The district court then accepted the plaintiffs argument that reliance upon the documents (setting forth the alleged misrepresentation) was demonstrated by the fact that the employees entered into employment after receiving the documents. Id. at 679. “It is implausible that, in initiating or continuing their employment with MCI, the salespersons did not rely on the commissions plans which they were required to sign. Further, whether their reliance was reasonable is an objective inquiry common to the entire proposed class.” Id. In the case at bar, the Court faces a scheme premised upon standardized forms and even the use of the process of the courts. It is difficult to conceive how those who made payments on the deficiency judgments could be found to have not relied. Those individuals clearly made payments in reliance upon the assurance that the process of repossession, sale and all subsequent steps were taken in conformity with the law and that their rights were protected. To conclude otherwise would deny human nature, run counter to the traditional presumption in favor of actors operating under rational economic choice, and leave the Court with an absurd conclusion. In examination of the claims raised by the Sixth Amended Complaint, the" }, { "docid": "20393787", "title": "", "text": "genuine controversy.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “When one or more of the central issues in the action are common to the class and can be said to predominate,” a class action will be considered proper “even though other matters will have to be tried separately.” Gartin v. S & M NuTec LLC, 245 F.R.D. 429, 435 (C.D.Cal.2007). “Because no precise test can determine whether common issues predominate, the Court must pragmatically assess the entire action and the issues involved.” Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 489 (E.D.Cal.2006). “Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227,1234 (9th Cir.1996). According to plaintiffs, predominance is “readily met” because each class member purchased Serum and was subject to the same deceptive marketing and advertising. Mot. at 13. Plaintiffs assert that no “individual issues exist” because the content of defendants’ omissions and representations can be determined on a classwide basis. Id. at 14. Plaintiffs contend that these common legal and factual issues predominate over plaintiffs’ UCL, CLRA, Song-Beverly, and GBL claims. Id. at 15-18, 20-21. Defendants respond that no presumption of reliance is warranted for the class members and, as a result, individual questions predominate. Opp’n at 18. According to defendants, “[i]n the case of a product like the Serum, which contains numerous representations, reliance is not uniform across a putative class and class treatment is therefore inappropriate.” Id. (relying on Pfizer Inc. v. Sup. Ct. (Galfano), 182 Cal.App.4th 622, 632, 105 Cal.Rptr.3d 795 (Cal.Ct.App. 2010)). Defendants assert that “[u]nlike eases where reliance can be presumed, this case does not involve an affirmative misrepresentation, nor does it allege that a product failed to perform as advertised.” Opp’n at 19. Thus, defendants maintain that “each putative plaintiff will have to show reliance on an omission, resulting in countless individual inquiries.” Id. The Court finds that common issues predominate over individualized issues for largely the same reasons as Rule 23(a)’s" }, { "docid": "19116961", "title": "", "text": "though the required proof of causation varies greatly; indeed, some states require reliance rather than causation. For example, New Jersey law infers causation in many instances, while Texas generally requires proof that each individual plaintiff relied on the allegedly misleading statements. Plaintiffs do not distinguish between reliance and exposure, and they offer no individualized proof of either. Though Plaintiffs may be entitled to a class-wide presumption of reliance in some states, a plaintiff can only reasonably be presumed to rely upon information he actually received. The problem Plaintiffs face is that there is powerful evidence that most members of the proposed classes probably never saw the allegedly misleading statements. The television commercials ran for only a small part of the class period, and the superiority claims appeared in small print on the back of a minority of Fresh Step packages. Regardless of the generosity of the various states’ causation or reliance requirements, Plaintiffs simply cannot demonstrate that the proposed classes were uniformly exposed to the allegedly misleading messages. The Court proceeds to analyze each proposed sub-class by state. i. California Under California law, a class-wide presumption of reliance upon an allegedly misleading message may be appropriate in some cases. Plaintiffs urge the Court to “presume[ ] that all class members relied on Clorox’s odor superiority 'misrepresentation.” Reply at 10. Bizarrely, Plaintiffs cite a California Supreme Court case for the proposition that “[i]t is well-settled in the Ninth Circuit that class-wide reliance is presumed where a misrepresentation is ‘material.’ ” Id. It is possible that Plaintiffs meant to argue that California Supreme Court precedent governs the application of California law when federal courts apply it. Even if that were Plaintiffs’ intended argument, they read the case they cite for a much broader proposition than it supports. Plaintiffs appear, remarkably, to argue that any materially misleading product advertisement is automatically presumed under California law to reach and influence all of the product’s customers. See Id. (citing In re Tobacco II Cases, 46 Cal.4th 298, 326-27, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009)). The presumption established in Tobacco II was much more limited," }, { "docid": "9795594", "title": "", "text": "Class Representatives are not entitled to Binder’s presumption of reliance. C. CIRCUMSTANTIAL EVIDENCE The Class Representatives’ second fallback position is that reliance can be proven through classwide circumstantial evidence, such that individualized reliance issues related to causation would not predominate. At bottom, this argument is a variation on both the causation and presumption of reliance themes. The suggestion that “common sense” links the act of a player’s falling for the misrepresentations or omissions on the machines to the ensuing loss is just another effort to avoid the necessary proof of causation. We are not persuaded by the Class Representatives’ argument that the gambling transactions here are analogous to the transactions at issue in Garner v. Healy, 184 F.R.D. 598 (N.D.Ill.1999). In Garner, the district court certified a class of consumers who purchased a substance represented as “car wax” that allegedly contained no wax, holding that the alleged fraud “was perpetrated in a uniform manner against members of the class,” such that individual reliance issues would not predominate. Id. at 602 (internal quota tion marks omitted). The court quite sensibly concluded that “if Plaintiffs paid money for a ‘wax,’ but instead received a worthless ‘non-wax’ product, then issues of proximate cause would be relatively simple to resolve on a classwide basis.” Id. Similarly, the Class Representatives cite to Peterson v. H & R Block Tax Services, Inc., 174 F.R.D. 78 (N.D.Ill.1997), in which a district court certified a consumer class that allegedly was induced by representations presented in standard documents to purchase tax refund sendees for which the class members were ineligible. The court concluded: “It is inconceivable that the class members would rationally choose to pay a fee for a service they knew was unavailable.... The only logical explanation for such behavior is that the class members relied on [defendants’] representation that they could take advantage of [the service] by paying the requisite fee.” Id. at 85. No such “common sense” or “logical explanation” serves to link the gambling patrons and their use of gaming machines. Indeed, there may be no single, logical explanation for gambling — it may be" }, { "docid": "13092920", "title": "", "text": "Deck Exs. E; NMCC Ex. 46. . McCann obtained a Ph.D. in Economics from UCLA and is a Chartered Financial Analyst. McCann Deck ¶¶ 3-4. He has held various academic and business consulting positions. Id. . The Court further notes that variations in the degree of injury allegedly suffered by each class member do not defeat typicality. \"It is not necessary that all class members suffer the same injury as the class representatives.” Judge William W. Schwarzer, Judge A. Wallace Tashima, & James M. Wagstaffe, Federal Civil Procedure Before Trial, § 10:292 (The Rutter Group, 2006) (emphasis in original). Rather, a \"plaintiff's claim may be 'typical' although other members of the class suffered less (or more) injury.\" Id. § 10:293 (citing Rosario, 963 F.2d at 1017 (\"The fact that there is some factual variation among the class grievances will not defeat a class action.\")). . In addition, Allianz asserts that plaintiffs' have offered no evidence regarding the different level of education and financial sophistication of persons in the proposed class, nor whether all class members were working full lime or retired, as assumed by the Complaint. Id. at 12-13. . In Peterson v. H & R Block, the court found that class-wide reliance could be shown where a class of taxpayers were allegedly induced by standardized documents to purchase tax refund services for which they were ineligible. 174 F.R.D. 78, 85 (N.D.Ill. 1997). The Court reasoned that: \"It is inconceivable that the class members would rationally choose to pay a fee for a service they knew was unavailable ... The only logical explanation for such behavior is that the class members relied on [defendants'] representation that they could take advantage of [the service] by paying the requisite fee.” Id. Likewise in Garner v. Healy, the district court certified a class of consumers who had been defrauded by \"a standardized course of conduct involving uniform misrepresentations” into purchasing a \"car wax\" product that allegedly contained no wax. 184 F.R.D. 598, 602 (N.D.Ill. 1999). With respect to reliance and causation, the court concluded that \"if Plaintiffs paid money for a 'wax,' but" }, { "docid": "19318245", "title": "", "text": "of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996). Here, the putative class satisfies the commonality requirement. The claims of all prospective class members involve the same device with the same alleged defect, marketed using the same alleged material omissions and misrepresentations, and covered by the same warranty. The Court now examines whether these common questions predominate over questions involving individual members of the proposed class. a. Individualized Issues of Reliance Do Not Predominate Defendants contend that the reliance element of Plaintiffs UCL claim hinges on questions of individualized proof, which predominate over common questions. (Opp’n 9.) The Court disagrees. The record reflects that the alleged omissions and affirmative misrepresentations were consistently made and are therefore common to all members of the putative class. (Audet Deck, Ex. 21, Nilsson Dep. at 49:2-12 [testifying that there were fewer than 6 brochures].) The Court therefore finds an inference of class-wide reliance on the alleged misrepresentations. See Wiener v. Dannon Co., 255 F.R.D. 658, 669 (C.D.Cal.2009) (“For a class action, an inference of reliance arises as to the entire class only if the material misrepresentations were made to all class members.”). “An inference of reliance arises if material misrepresentations were ‘made to persons whose acts thereafter were consistent with reliance upon the representation.’” Id. Here, it is unlikely that a member of the putative class would have purchased the NobelDirect product without having been influenced by Defendants’ uniform marketing claims. Furthermore, it is reasonable to assume that no rational member of the putative class would have purchased and used the NobelDirect implant had he or she been aware of the alleged defective design. See Negrete v. Allianz Life Ins. Co. of N. Am., 238 F.R.D. 482, 492 (C.D.Cal.2006) (holding that the court could reasonably assume that no rational class member would have purchased the product had he or she known of the alleged misrepresentation). Accordingly, the identical nature of the alleged fraudulent representations supports a presumption of reliance. Moreover, assuming arguendo that a presumption" }, { "docid": "8638482", "title": "", "text": "class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed. Fed.R.Civ.P. 23 advisory committee’s notes (citations omitted). Despite the generalized concern about the individual nature of the misrepresentations and/or reliance inquiry in fraud cases, there are at least three recurring situations in which courts have found common issues predominant in fraud cases: (1) those in which reliance is common across the class; (2) those in which courts have excused a showing of individual reliance; and (3) those in which the underlying law does not require a showing of individual reliance. Newberg § 4:58. Reliance may be a common issue when the same misrepresentation is made to the entire class; some circuits have held that written misrepresentations may be common issues while oral misrepresentations are presumed to be individualized. See, e.g., Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253 (2d Cir.2002) (”[T]he Third, Fourth, Fifth, Sixth, and Seventh Circuits ... have held that oral misrepresentations are presumptively individualized.”); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir.1998) (certifying class where alleged misrepresentations were written and uniform); Spencer v. Hartford Fin. Servs. Grp., Inc., 256 F.R.D. 284, 297 (D.Conn. 2009) (certifying class where class definition was narrowed to include only those who had received written communications from defendant). The requirement that plaintiffs show reliance is most often presumed or excused in so-called fraud-on-the-market securities cases, in which class members—investors in the defendant company—are presumed to be rational, fully informed actors who use all of the information available to the general public, but are also presumed to not possess insider information. We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. Second, under the" }, { "docid": "6057999", "title": "", "text": "Subclass A to fit within this narrow presumption given their particular facts. The United States District Court in Sparks stated that “the court may presume reliance ‘where it is logical to do so.’ ” Spark, 178 F.R.D. at 435 (quoting Sharp v. Coopers & Lybrand, 649 F.2d 175, 188 (3d Cir.1981)). The court then concluded that, [I]t is fair to assume that most individuals who opened up credit card accounts after receiving the offer from MBNA did so because the advertisement, and specifically because of the low APR____ Thus, the court finds that it is ‘logical’ to presume reliance in this case, and therefore that common questions of law and fact predominate over individual ones in this case. Id. at 436. This logic of self-proving reliance applies with equal force to the claims of Subclass A members. In Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 338 (N.D.Ill.1997), the district court, recognizing a RICO requirement that the “scheme proximately caused injury to the plaintiff,” reached the same conclusion and applied this self-proving rationale. Addressing the mail fraud claims under RICO in the context of prescription pricing, the district court noted that “[cjourts have adopted two different approaches to the reliance requirement in RICO class action suits based on fraud.” Id. The court continued and stated, “[wjhen the fraud is perpetrated in a uniform manner against every member of the class, such as when all plaintiffs received virtually identical written materials from the defendants, courts typically hold that individual reliance questions do not predominate.” Id. In this case, the proposed class would only include persons who signed the Manor Care contract and who also received specific written statements regarding pricing at Vitalink pharmacies____ In cases like this one, where the common documents include a contract to which every plaintiff is a signatory, it is particularly sensible to view reliance questions as secondary: by definition, parties to a contract are aware of and rely on the representations or omissions in the contract. Id. at 338-39. In Peterson v. H & R Block Tax Sens., Inc., 174 F.R.D. 78 (N.D.Ill.1997), another district court" }, { "docid": "19789513", "title": "", "text": "reliance on particular misrepresentations is unnecessary to establish a Rule 10b-5 claim. Accordingly, this Court adopts the fraud on the market theory in the open market context and applies it in this case. Plaintiffs, therefore, need not prove direct reliance on Defendants’ alleged misrepresentations, but can satisfy their burden of proof on the element of causation .by showing that Defendants made material misrepresentations. If Plaintiffs make such a showing, the Court will presume that the misrepresentations occasioned an increase in the stock’s value that, in turn,' induced the Plaintiffs to purchase the stock. The Defendants may, of course, assert appropriate defenses, including the defenses that the market did not respond to the alleged misrepresentations or that the Plaintiffs would have purchased the stock even if they had known of them. In an open and developed market, the dissemination of material misrepresentations or withholding of material information typically affects the price of the stock as a reflection of its value. The likelihood that Plaintiffs’ purchase of stock can be causally connected to Defendants’ alleged misrepresentations is so strong that it is logical to presume reliance and to shift the burden of rebutting that presumption to Defendants. See Peil v. Speiser, 806 F.2d 1154 [Current] Fed.Sec.L.Rep. (CCH) ¶ 93,006 at 94,942-943 (3d Cir.1986); In re LTV Securities Litigation, 88 F.R.D. 134, 142 and 145 (N.D.Tex.1980). This implied-in-law reliance common to all class members is a substitute for actual, particularized reliance by class members and thus perforce “predominates” over questions of individual reliance. Therefore, in light of the above, the Plaintiffs have satisfied the 23(a)(2) and 23(b)(3) requirements with respect to the issue of reliance. c. Damages Finally, Defendants argue that the necessity of adjudicating individual questions of damages will render this case unmanageable as a class action. Courts have consistently rejected the argument that individual damages questions prevent class action certification. See, Blackie v. Barrack, 524 F.2d at 905; Koenig v. Smith, 88 F.R.D. 604, 609 (E.D.N.Y.1980); Lewis v. Capital Mtg. Investments, 78 F.R.D. at 306-07. This interpretation of Rule 23(b)(3) is consistent with the Advisory Committee Comments accompanying the 1966 amendment," }, { "docid": "20256081", "title": "", "text": "prevail on their claims. Rather, the Court must determine whether plaintiffs have shown that there are plausible classwide methods of proof available to prove their claims.” Negrete v. Allianz Life Ins. Co., 238 F.R.D. 482, 489 (C.D.Cal.2006). Acer contends that Plaintiffs have failed to address the predominance requirement as to each of their claims for relief. In particular, Acer argues that individual questions concerning the Plaintiffs’ claims under the CLRA, FAL and UCL will predominate over common questions because these claims are based on allegations of fraudulent misrepresentations and that Plaintiffs are not entitled to a classwide presumption of reliance or causation. (Opp. at 20-21.) Contrary to Acer’s argument that Plaintiffs’ fraud-based claims would require analysis of each potential class member’s motivation, Plaintiffs’ claims do not require individualized showing of reliance. See Clemens v. Da-imlerChrysler Corp., 534 F.3d 1017, 1025-26 (9th Cir.2008). As to class claims under the UCL, the state supreme court has stated that “relief under the UCL is available without individualized proof of deception, reliance and injury.” In re Tobacco II Cases, 46 Cal.4th 298, 320, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). See In re Steroid Hormone Product Cases, 181 Cal.App.4th 145, 158, 104 Cal. Rptr.3d 329 (2010) (disagreeing with Cohen “to the extent the appellate court’s opinion might be understood to hold that plaintiffs must show class members’ reliance on the alleged misrepresentations under the UCL”). Under California law, reliance may be presumed from a showing that a misrepresentation was material. Tobacco II Cases, 46 Cal.4th at 327, 93 Cal.Rptr.3d 559, 207 P.3d 20. A plaintiff need not “demonstrate individualized reliance on specific misrepresentations to satisfy the reliance requirement.” Id. Materiality of the misrepresentation is an objective standard that is susceptible to common proof. Brazil v. Dell Inc., 2010 WL 5387831, *5 (N.D.Cal. Dec. 21, 2010). See also Falk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1094 (N.D.Cal.2007) (“Materiality, for CLRA claims, is judged by the effect on a ‘reasonable consumer.’ ”) (citation omitted). Plaintiffs allege that the packaging for the notebooks misrepresented that the notebooks met the recommended system requirements for running Vista Premium" }, { "docid": "19306653", "title": "", "text": "Waller puts the value differential somewhere between $12 and $30 per hard drive, but these are all questions for the trier of fact to resolve; they aren’t for the Court to resolve at the class certification stage. The second check on runaway eases is the requirement that class members at least have been exposed to the misrepresentation. As the court in Konik put it, “Requiring demonstrable classwide exposure to the misstatements would further the consumer protection laws’ broad remedial purposes without granting windfalls to plaintiffs who physically could not have relied on misrepresentations.” Konik, 2010 WL 8471923 at *8. This requirement substantially limits a defendant’s exposure to UCL liability by slashing the size of a potential class from all purchasers to only that subset that was certainly exposed to the alleged misrepresentation at issue. 2. Uniformity of Alleged Misrepresentations The relevant class “must be defined in such a way as to include only members who were exposed to advertising that is alleged to be materially misleading.” Mazza, 666 F.3d at 596. See also Stearns, 655 F.3d at 1020 (“We do not, of course, suggest that predominance would be shown in every California UCL case. For example, it might well be that there was no cohesion among the members because they were exposed to quite disparate information from various representatives of the defendant.”). Astiana, 291 F.R.D. at 504-05 (“For purposes of class certification, it is sufficient that the alleged material misstatement and omission was part of a common advertising scheme to which the entire class was exposed....”); O’Shea, 2011 WL 4352458 at *11. The Ninth Circuit vacated a class certification in Mazza on precisely this basis. The alleged misrepresentations about the Acura RL braking system appeared in product brochures and television commercials that didn’t give rise to a presumption of classwide reliance. In other words, common issues predominate when plaintiffs are exposed to common set of representations about a product. In re Ferrero Litig., 278 F.R.D. 552, 560 (S.D.Cal.2011). Seizing on this principle, HP argues that putative class members in this case weren’t exposed to a uniform representation. First, HP claims" }, { "docid": "1814019", "title": "", "text": "respect to two distinct aspects of plaintiffs case: (1) reli- anee and the fraud-on-the-market presumption, and (2) the calculation of damages. First, if defendants are able to rebut the fraud-on-the-market presumption based on the October 3 disclosure, as explained individual issues concerning reliance would predominate for purchasers after that date. Second, defendants argue, in effect, that the proposed class would generate conflicting in-tra-elass incentives regarding the calculation of damages among class members who purchased versus those who sold after the October 3 disclosure. With respect to the former, defendant relies on In re Federal National Mortgage Association. That decision stated, “[i]n determining the duration of a securities fraud class based on a fraud-on-the-market theory, the Court must determine whether ‘a curative disclosure had been made so as to render it unreasonable for an investor, or the market, to continue to be mislead by the defendants’ alleged misrepresentations.’ ” In re Federal Nat. Mortg. Ass’n Securities, Derivative and “ERISA” Litigation, 247 F.R.D. 32, at *38 (D.D.C.2008) (Leon, J.) (citation omitted). Defendants also rely on Ravens v. Iftikar, 174 F.R.D. 651 (N.D.Cal. 1997) (Walker, J.). Ravens discussed class-certification problems posed by a situation involving “multiple corrective disclosures” whereby the market, in the middle of the class period, [was] told the truth, figures it out or stumbles across it [and therefore] offer[ed] investors trading opportunities at non-inflated (not fraudulent) prices. The presence in the market of information corrective of the fraud — whatever its source — snap[ed] the causal link between misinformation and any injury of plaintiffs. Further, such intervals of truth in the market create[d] gaps or phases in the class period and preclude[d] a claim of continuous artificial price inflation. Id. at 670. Therefore, not all class members could claim the benefit of the fraud-on-the-market presumption to establish reliance. Plaintiff, in turn, contends that the issue is governed by Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), and its progeny. Blackie explained that “[confronted with a class of purchasers allegedly defrauded over a period of time by similar misrepresentations, courts have taken the common sense approach that the class is united" }, { "docid": "13092900", "title": "", "text": "no “specific forms of proof, for example, uniform written scripts for any oral communications and uniform training of sales agents” are required to establish the existence of standardized misrepresentations. Id. at 1255. If class plaintiffs can show that generalized methods of proof are available to show that uniform representations were made to all class members which were misleading because they failed to disclose that all of the annuities at issue were worth less than the purchase prices paid for them or are fundamentally inferior to comparable products, then plaintiffs may be able to show that they have available a means of demonstrating reliance on a class-wide basis. Generalized proof that the common, uniform written sales marketing materials are misleading because they fail to disclose that the Allianz deferred annuities are worth substantially less than the prices paid for them, or would give rise to a common sense inference that no rational class member would purchase the annuities in questions upon adequate disclosure of the facts, regardless of their individual circumstances, may be employed as a means of establishing class-wide proof of damages. The availability of such generalized proof would be analogous to the claims made in Garner v. Healy, 184 F.R.D. 598 (N.D.Ill.1999), and Peterson v. H. & R. Block Tax Services, Inc., 174 F.R.D. 78 (N.D.Ill.1997), which the Ninth Circuit recognized in Poulos to be cases where reliance can be shown where it provides the “common sense” or “logical explanation” for the behav ior of plaintiffs and the members of the class. Poulos, 379 F.3d at 667-668. Here, plaintiffs have submitted evidence that Allianz’s FMOs and independent agents used standardized written marketing materials supplied by Allianz in selling the Allianz deferred annuities at issue in these cases. In particular, plaintiffs have offered evidence that Allianz prepared standardized consumer brochures and SOUs for each annuity product. Allianz apparently required both the purchaser of the annuity and the agent sign the SOU at time of sale. By signing the SOU, the purchaser stated that he or she had read and understood the information set forth therein, which had also been explained" }, { "docid": "5260819", "title": "", "text": "and Motion for Class Certification state Defendants made material misrepresentations and omissions, Plaintiff does not allege any specific omissions. Compl. ¶ 37. Thus, even when reading the allegations in Plaintiffs Complaint liberally, the Court is not persuaded that this is primarily an omission case of the type contemplated by Ute. Accordingly, the Court will not find a rebuttable presumption of reliance on a class wide basis. Plaintiff also argues in a conclusory fashion that this Court should presume reliance in accordance with cases where “fraud creates the market” for a product. In this regard, Plaintiff maintains that the “breadth and pervasiveness of defendants’ scheme ... has allowed the Policies to enter and remain on the market resulting in greater profit for Defendants.” Motion at 15. The fraud-on-the market theory is utilized in securities cases. See e.g., Basic, Inc. v. Levinson, 485 U.S. 224, 243, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). Plaintiff has not cited to any cases to support her argument that this Court should expand this theory to RICO actions. See Buford v. H & R Block, Inc., 168 F.R.D. 340, 359 n. 8 (S.D.Ga.1996) (stating “[t]his Court is convinced that the Affiliated Ute presumption of reliance does not reach beyond § 10(b)(5) actions”), aff'd, Jones v. H & R Block Tax Servs., 117 F.3d 1433 (11th Cir. 1997); In re Ford Motor Co. Bronco II Litig., 177 F.R.D. 360, 374 (E.D.La.1997) (noting “theory of presumptive reliance ‘has been generally limited to the securities market’ ”). Under Plaintiffs RICO theory, each class member would have to demonstrate his or her individual reliance upon the alleged misrepresentations, causing individual, not common, fact issues to predominate. b. Breach of Contract Plaintiff also seeks certification under 23(b)(3) for her state law breach of contract claim. Plaintiff alleges, inter alia, that Defendants breached their insurance polices by delaying payments to the credit card company, Am. Compl. ¶ 13, requiring their insured to submit a claim form each and every month, id. ¶ 15, refusing to accept claim forms that are filed before the due date of the next billing period, id. ¶" }, { "docid": "6058000", "title": "", "text": "mail fraud claims under RICO in the context of prescription pricing, the district court noted that “[cjourts have adopted two different approaches to the reliance requirement in RICO class action suits based on fraud.” Id. The court continued and stated, “[wjhen the fraud is perpetrated in a uniform manner against every member of the class, such as when all plaintiffs received virtually identical written materials from the defendants, courts typically hold that individual reliance questions do not predominate.” Id. In this case, the proposed class would only include persons who signed the Manor Care contract and who also received specific written statements regarding pricing at Vitalink pharmacies____ In cases like this one, where the common documents include a contract to which every plaintiff is a signatory, it is particularly sensible to view reliance questions as secondary: by definition, parties to a contract are aware of and rely on the representations or omissions in the contract. Id. at 338-39. In Peterson v. H & R Block Tax Sens., Inc., 174 F.R.D. 78 (N.D.Ill.1997), another district court found similarly in a class action regarding H & R Block’s rapid refund/loan program. The Peterson court first noted that “courts will presume class members’ reliance when it is logical to do so or when the complaint’s allegations make reliance apparent.” Id. at 84-85. The Peterson court determined that where class members were induced to pay a fee for a service they were ineligible for (rapid tax refunds), the “only logical explanation for such behavior is that the class members relied on the RAL Fact Sheet’s representations that they could take advantage of RAL by paying the requisite fee.” Id. at 85. Finally, in Smith v. MCI Telecomm. Corp., 124 F.R.D. 665 (D.Kan.1989), the district court concluded that where RICO fraud claims were made on the basis of written documents (plans and addenda provided to employees), “the basic misrepresentation giving rise to the fraud claim is uniform.” Id. at 678. The district court then accepted the plaintiffs argument that reliance upon the documents (setting forth the alleged misrepresentation) was demonstrated by the fact that the" } ]

[ { "docid": "7941940", "title": "", "text": "evidence further shows that the night was misty and foggy, but not to such an extent as to impede the vision of the eyewitnesses who testified that they saw the train's large headlight burning brightly, and illuminating at least fifty feet on each side of the main-line track. It also affirmatively appears that the air horn on the diesel engine was blown shortly before the accident, and the bell had been ringing for some distance before it reached Chicago Street. We agree with appellants that the issue of contributory negligence is ordinarily for the jury, but it is well-settled that where there is no substantial conflict in the evidence which conditions it, and when, from the undisputed facts, reasonable men in the exercise of a fair judgment would be compelled to reach the same conclusion, the court may properly withdraw it from the jury. Smith v. Fidelity Mut. Ins. Co., 5 Cir., 206 F.2d 549. Applying these principles to the undisputed facts as disclosed by this record, we think it plain that the driver, in the exercise of ordinary care for his own safety, could have easily stopped the car, which was moving at a relatively slow speed, after passing the north edge of the farm machinery and before reaching the main-line track. The greater the difficulty of seeing and hearing the train as he approaches the crossing, the greater caution the law imposes upon the motorist. Barnhill v. Texas & P. R. Co., 109 La. 43, 33 So. 63. Cf. Guidry v. Texas & N. O. R. Co., La.App., 56 So.2d 611; Stelly v. Texas & N. O. R. Co., La.App., 49 So.2d 640. And where, as here, the driver’s view of the tracks was obstructed he was required under the Louisiana law to proceed only with the greatest caution. We are in no doubt that the court below was correct in granting the motions for judgments notwithstanding the verdicts and that the judgments appealed from should be affirmed. Affirmed." } ]

[ { "docid": "21635351", "title": "", "text": "the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 417, 12 S. Ct. 679, 683 (36 L. Ed. 485). At the same time it is well settled that the court may withdraw a ease from the jury altogether, and direct a verdict against plaintiff, where the evidence against him is undisputed, or of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Patton v. Texas & Pacific Railroad Co., 179 U. S. 658, 659, 21 S. Ct. 275, 45 L. Ed. 361. “It is true that, where the undoubted facts and circumstances in evidence clearly show that one about to cross a railway track must inevitably have seen a coming car or train if he had actually looked in its direction, the testimony of the injured party that he looked and failed to see it coming may be rejected, and his contributory negligence declared as matter of law notwithstanding.” Glaria v. Washington Southern Ry. Co., supra. These rules apply where the plaintiff’s ease is based upon a charge of last clear chance negligence. Washington R. & E. Co. v. Buscher, 54 App. D. C. 353, 298 F. 675. When we examine the present record in the light of these principles, we are led to the conclusion that the lower court was correct in holding that the testimony conclusively established the contributory negligence of the plaintiff, and did not tend to establish negligence, even under the last clear chance doctrine, upon the part of the truck driver. According to the plaintiff’s testimony, he was walking across the street in broad daylight at a point somewhat distant from the corner crossing, at a time when the street was otherwise clear of traffic, and that he walked to a point in the street directly in front of the" }, { "docid": "11816503", "title": "", "text": "he saw an automobile appear over the Southern Pacific tracks to the east (which tracks were later determined to be 1262 feet east of the appel-lee’s tracks); that, after the engine had reached the center of the street, he stepped onto the front of the engine and rode on it across the street; and that the front end of the engine had passed the south border of the street at the time of the collision. The plaintiff testified that he did not see any light from the engine, heard no whistle or bells, and that the grocery store on the north side of the street obstructed his view of the tracks in that direction. We agree with the court below that the accident could not have happened in the manner described by the plaintiff, because his description was in complete conflict with arithmetical computation and physical possibility. Upon consideration of the entire record, and adopting a view most favorable to the plaintiff, allowing him every fair and reasonable inference that the evidence justifies, we are of the opinion that he did not exercise the precaution required of him by law, and that the lack of ordinary care and prudence on his part was the proximate cause of his injuries. The plaintiff also attempted in the court below to invoke the doctrine of last clear chance; and he asserts that doctrine as ground for reversal on this appeal. In order that this doctrine may be invoked, it must appear that the appellee was aware, or reasonably should have been, that the plaintiff was in a position of peril. There is no evidence in the record to support such a finding. The train crew had the right to assume that the plaintiff would stop short of the track, since the train had already preempted the street prior to his arrival at the crossing. The crewmen were not negligent in failing to anticipate the negligence of the plaintiff. Pollard v. Davis, 5 Cir., 93 F.2d 193; Eggleston v. Louisiana & A. Railway Co., La.App., 192 So. 774; Wright v. Texas & N. O." }, { "docid": "13704643", "title": "", "text": "appel-lee’s claim. Stating, “Applying Louisiana jurisprudence, we hold motorists to strict standards of care as they approach railroad crossings which they know, or ought clearly to know, are there”, and setting out all the correct principles which, under Louisiana law, govern cases of this kind, the opinion convincingly demonstrates that under its facts, one of the most important of which was that there was negligence on the part of the railroad company and that the plaintiff did not know that he was approaching a crossing, the court held that the case was not one for an instruction but one for the jury. It is true that in Texas & P. R. Co. v. Watkins, 5 Cir., 243 F.2d 171, Judge Tuttle dissenting, at first blush the majority opinion seems in its application to the facts to be out of line with the principles governing the application in Louisiana of the rule of contributory negligence in cases of this general kind. Nothing in it, however considered, can be taken as undertaking to state a general rule contrary to that stated and applied herein and in the uniform decisions of the Louisiana courts and of this court, including particularly Brinson v. Illinois Central, 5 Cir., 241 F.2d 494, which we think conclusive of this case, and which the court in the Watkins case could not, and did not attempt to, overrule. Finally, appellee’s reliance on Ruhl v. Missouri Pac. R. Co., Mo., 304 S.W.2d 16, 18, will not at all do, for as there appears, the collision in that case was one in which both driver and guest were killed, and there was no evidence as to what was done by the driver before crossing the track. The court there merely held that since this was so, “There is no evidence as to what they did and whatever the rule may be elsewhere (annotation 84 A.L.R. 1221), it is presumed in Kansas, in the absence of evidence, that the deceased driver and occupant looked and listened for an approaching train before venturing upon the crossing.” As an examination of the decisions of" }, { "docid": "7012265", "title": "", "text": "of the tender was dim with no reflectors. The light was there for pedestrians to see it, not to furnish illumination for the engineer. It is not claimed that the light was so insufficient that Rutherford would not have seen it. In the Bryant case, supra, the railroad was not negligent although there was no light on the rear of a long train that was backing. There is nothing in the record to show that the railroad was negligent in using a road engine instead of a switch engine. The engineer was making up a string of cars to take to Baton Rouge. It is not shown that a switch engine is customarily used to make up cars or that a reasonable standard of due care requires that one be used. The cow catcher on a swTitch engine would not have prevented Rutherford’s injury if, as he testified, he fell into the train. The trial judge was correct in ruling that the railroad was not negligent. II. Rutherford contends that the question of contributory negligence was one of fact for the jury. This Court has said: “We agree with appellants that the issue of contributory negligence is ordinarily for the jury * * Where, however, “there is no substantial conflict in the evidence which conditions it and when, from the undisputed facts, reasonable men in the exercise of a fair judgment would be compelled to reach the same conclusion, the court may properly withdraw it from the jury. Smith v. Fidelity Mut. Ins. Co., 5 Cir., 206 F.2d 549.” Rutherford first testified that he “guessed” he heard the train. On cross-examination he testified that he heard some engines, but did not know whether it was the engine that struck him. A steam engine makes enough noise to be heard for more than a quarter of a mile. As the district judge found: (1) “With this knowledge he proceeded to walk on up the track some distance * * * [I]t was his duty, when he discovered that situation, to either turn back and go back or get off the tracks.”" }, { "docid": "3967901", "title": "", "text": "192 S.W.2d 1008 (1945); Wallace v. Louisville & Nashville Railroad Co., 332 F.2d 97 (C.A.6, 1964). While referring specifically to Arkansas law, the Tennessee Supreme Court in the case, of Snyder v. Missouri Pacific Railway Co., supra, stated the general rule to be as follows: “In Arkansas, as elsewhere, a railroad track is an admonition of danger and it is the duty of persons crossing the track to look and listen before making this effort. Such persons are bound by what they could have discovered had they looked or listened. If the duty to look and listen cannot be adequately performed without stopping, it is the duty of the traveler to stop.” While the issue of contributory negligence in railroad crossing accidents is generally an issue for the jury to decide, the Tennessee courts have nevertheless held in cases closely analogous to the principle case that the driver was guilty of proximate contributory negligence and therefore barred from recovery as a matter of law. Louisville & N Railroad Co. v. Anderson, 159 Tenn. 55, 15 S.W.2d 753 (1928); Tennessee Central Railway v. Ledbetter, 159 Tenn. 404, 19 S.W.2d 258 (1928); Snyder v. Missouri Pacific Railway Co., 183 Tenn. 471, 192 S.W.2d 1008 (1945); Union Railway Co. v. Jinks (1965) 55 Tenn.App. 491, 402 S.W.2d 495. See also Dean v. Southern Railway Co., 327 F.2d 757 (C.A.6, 1964). In the case of Louisville & N Railroad Co. v. Anderson, 159 Tenn. 55, 15 S.W. 2d 753 (1928), the relevant facts are adequately set forth in the following quotation from the opinion, wherein the Court held the plaintiff, a passenger in an automobile involved in a railroad crossing accident, was barred from recovery by reason of proximate contributory negligence: “The undisputed evidence shows that Anderson, on the rear seat of the sedan, could have seen the approaching train in time to warn the driver and avoid the accident. Either he did see the train, and failed to utter any warning, or else he did not look up the track as he was being carried on the crossing, and thus failed to discover" }, { "docid": "21635350", "title": "", "text": "close of the testimony the defendants renewed their motion for a directed verdict, and the court sustained it, saying that plaintiff’s own testimony had proven him guilty of contributory negligence. Judgment was entered upon the directed verdict, and this appeal was taken. In our opinion the judgment of the lower court was right. It is settled law that a motion to direct a verdict against the plaintiff is an admission of every fact in evidence tending to sustain Ms case and of every inference reasonably dedueible therefrom, and that the motion can be granted only when but one reasonable view can be taken of the evi denee and the conclusions therefrom, and that view is utterly opposed to the plaintiff’s right to recover. Glaria v. Wash. Southern Ry. Co., 30 App. D. C. 559. It is a familiar rule in negligence eases that, “when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 417, 12 S. Ct. 679, 683 (36 L. Ed. 485). At the same time it is well settled that the court may withdraw a ease from the jury altogether, and direct a verdict against plaintiff, where the evidence against him is undisputed, or of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Patton v. Texas & Pacific Railroad Co., 179 U. S. 658, 659, 21 S. Ct. 275, 45 L. Ed. 361. “It is true that, where the undoubted facts and circumstances in evidence clearly show that one about to cross a railway track must inevitably have seen a coming car or train if he had actually looked in its" }, { "docid": "13704624", "title": "", "text": "right-of-way adjacent to the crossing so as to allow a motorist to see up and down the track”, and arguing that, under the undisputed evidence, including that of the plaintiff herself, the fact that weeds and grass obstructed the view was not a proximate cause of plaintiff’s injuries, appellant in- gists that the judgment must be reversed and here rendered, both for that reason and because of the contributory negligence of the plaintiff. In demonstration of the truth of these contentions, appellant then puts forward in a brief, distinguished as well by its range as by its specificity, a series of propositions with in each instance a reference to, and in most a quotation from, a decision or decisions of the Louisiana Courts, with now and then a decision of a federal court, deemed precisely in point and authoritative or closely in point and persuasive. In doing this, however, it recognizes that almost no case is in its facts a precise replica of another and that each court in each case must, under the rules of right reason which govern the determination, determine and decide whether under the particular facts of that case the issue of negligence or contributory negligence in that case presents a question of law for the court or of fact for the jury. Appellees concede, as they must, that, as decided by this court in Brinson v. Illinois C. Ry. Co., 5 Cir., 241 F.2d 494, while negligence and contributory negligence are ordinarily issues for the jury, where there is no substantial conflict in the evidence and when, from undisputed and indisputable facts, reasonable men in the exercise of right reason and fair judgment could draw only one conclusion, the court may properly withdraw them from the jury. Standing firmly, however, on the opinion and decision of the district judge and on the cases cited and relied on by them, including particularly Henwood v. Wallace, 5 Cir., 159 F.2d 263, Judge Sibley dissenting, and Texas & Pac. Ry. Co. v. Watkins, 5 Cir., 243 F.2d 171, Judge Tuttle dissenting, appellees insist that under the facts of" }, { "docid": "13704642", "title": "", "text": "others had been proven. Henwood v. Wallace, 5 Cir., 159 F.2d 263, one judge dissenting, was a case in which the proof showed that the railroad train was running at a reckless rate of speed and failed to give any warning. The majority there held merely that the rule in Louisiana on the subject of contributory negligence was not made more stringent by the Louisiana Highway Regulatory Laws because they have not been so construed by the Appellate Courts of Louisiana and the Act of 1924 [LSA-R.S. 45:563] expressly enacted a contrary rule. Illinois Central R. Co. v. Aucoin, 5 Cir., 195 F.2d 983, 984 laid down no peculiar or new rule of law. The court merely held that under the facts this was not a case for the direction of a verdict. Kansas City Southern R. Co. v. Wiggins, 5 Cir., 234 F.2d 128, 132, written by the same panel that wrote Brown v. Louisville & N. Ry. Co., appearing in the same volume at page 204, contains nothing giving aid or comfort to appel-lee’s claim. Stating, “Applying Louisiana jurisprudence, we hold motorists to strict standards of care as they approach railroad crossings which they know, or ought clearly to know, are there”, and setting out all the correct principles which, under Louisiana law, govern cases of this kind, the opinion convincingly demonstrates that under its facts, one of the most important of which was that there was negligence on the part of the railroad company and that the plaintiff did not know that he was approaching a crossing, the court held that the case was not one for an instruction but one for the jury. It is true that in Texas & P. R. Co. v. Watkins, 5 Cir., 243 F.2d 171, Judge Tuttle dissenting, at first blush the majority opinion seems in its application to the facts to be out of line with the principles governing the application in Louisiana of the rule of contributory negligence in cases of this general kind. Nothing in it, however considered, can be taken as undertaking to state a general rule" }, { "docid": "13699959", "title": "", "text": "and because the verdict is excessive and appears to have been rendered by the jury while under the influence of passion and prejudice. We think a number of these contentions may be put aside because of the condition of the record. Both defendants urge that the court erred in refusing to submit the question of plaintiff’s contributory negligence to the jury. The record shows that the court fully instructed the jury and no objections or exceptions were taken to the instructions as given. In its instructions the court told the jury that: “There is no evidence of contributory negligence here so your responsibility will be to seek an answer to the question: ‘Has the preponderance of the evidence shown negligence proximately causing the accident as against Swift & Company and as against the Chicago Great Western Railway Company?’ ” Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., provides, inter alia: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” This rule contemplates giving the trial court an opportunity to correct the instructions if erroneous. Kansas City Public Service Co. v. Taylor, 8 Cir., 210 F.2d 3; Thompson v. Riggs, 8 Cir., 175 F.2d 81; Jack v. Craighead Rice Milling Co., 8 Cir., 167 F.2d 96. No objections having been interposed to the instructions as given, error therein cannot, for the first time, be urged in this court. As the instructions given were not excepted to by either party they became the law of the case. Quite aside from this, we have carefully considered all the evidence and- are of the view that there was no evidence of contributory negligence on behalf of plaintiff, nor was there any evidence of any negligence on behalf of the switching crew or the train crew participating in this switching movement. The Chicago Great Western Railway Company urges that the court erred in denying sufficient time for it to produce one Dr." }, { "docid": "13704625", "title": "", "text": "of right reason which govern the determination, determine and decide whether under the particular facts of that case the issue of negligence or contributory negligence in that case presents a question of law for the court or of fact for the jury. Appellees concede, as they must, that, as decided by this court in Brinson v. Illinois C. Ry. Co., 5 Cir., 241 F.2d 494, while negligence and contributory negligence are ordinarily issues for the jury, where there is no substantial conflict in the evidence and when, from undisputed and indisputable facts, reasonable men in the exercise of right reason and fair judgment could draw only one conclusion, the court may properly withdraw them from the jury. Standing firmly, however, on the opinion and decision of the district judge and on the cases cited and relied on by them, including particularly Henwood v. Wallace, 5 Cir., 159 F.2d 263, Judge Sibley dissenting, and Texas & Pac. Ry. Co. v. Watkins, 5 Cir., 243 F.2d 171, Judge Tuttle dissenting, appellees insist that under the facts of this case the issues were not for the court but for the jury. For the reasons and upon the authorities hereafter set down, we agree with appellant, we disagree with appellees and the district judge. Because, however, of the very profusion and, we must add, confusion in the decisions dealing with this troublesome matter, fact or law, before proceeding to the precise demonstration of our view, that in this case the questions presented are of law and not of fact, we think some preliminary generalizing will not be amiss. The civilian, with his code and his trial by judge, looks on the terms matter of fact and matter of law as little better than senseless jargon. We, brought up in its spirit and nurture, know that matter of fact and matter of law are the very stuff of which the common law is made, and that negligence suits have furnished natural battle grounds for knock down and drag out fights over fact and law. Whether the maxim, “ad quaestionem juris respondent judices, ad quaestionem facti" }, { "docid": "14517446", "title": "", "text": "The nub of the objections is that Venable was not qualified to speak as an expert in these instances. Having in mind defendant’s admission that it is not now attacking the qualifications of this witness, no further discussion is needed as to these points. Defendant argues, as a further ground for reversal, that the court below erred in denying defendant’s motion for judgment n. o. v. or, alternatively, a new trial, when the evidence unequivocally demonstrated that plaintiff was con-tributorily negligent in operating the grinding wheel in excess of its maximum rated speed and in disregard for his own safety. It is well established under the applicable Pennsylvania law that “‘[i]t is only in those cases where contributory negligence is so clearly revealed that fair and reasonable individuals would not disagree as to its existence that it may be declared judicially.’ * * * ‘It is only in clear cases where the facts are undisputed and but one inference can be drawn from them that courts can declare as a matter of law a party guilty of contributory negligence * * *.’ ” Thorton v. Aronoff, 279 F.2d 39, 40 (3 Cir., 1960). And as we noted in Thorton, supra, 279 F.2d at 40, a finding that plaintiff is contributorily negligent as a matter of law is a severely limited exception to the general rule that this question is for the jury. Our study of the record convinces us that the question of plaintiff’s alleged contributory negligence was properly submitted to the jury. The evidence favorable to plaintiff shows that: Plaintiff was instructed by his foreman, Braemer, to put on defendant’s new grinding wheel in order to check its performance. He was to use the wheel in a normal operation, and, in the same manner as' he would use any other wheel, produce a finished roll by going through the usual processes of roughing, shaping and finishing. Although Braemer initially had been skeptical about whether the 742 r.p.m. rated speed of defendant’s wheel was high enough for their normal use at J. & L. he made no mention of his" }, { "docid": "310345", "title": "", "text": "wrongful death recoveries by fifty percent. This appeal followed. II. THE FARM HANDS’ NEGLIGENCE In its instructions to the jury, the trial court instructed the jurors that any negligence found to have been committed by Armstrong’s employees, the Martin brothers, should be imputed to the decedent. Plaintiff-Appellant maintains that the trial court’s instruction is inconsistent with Louisiana law and that the decedent should not have been held responsible for his employees’ negligence. We disagree. Numerous cases in Louisiana jurisprudence hold that the negligence of an employee; while acting in the scope of his employment, is imputed to the employer. See, Geeck v. Jahncke Service, Inc., 249 So.2d 241, 243 (La.App. 4th Cir.1971); Leson Chevrolet v. Phoenix Insurance Co., 195 So.2d 444 (La.App. 4th Cir.1967); Grain Dealers Mutual Insurance Co. v. Texas and Pacific Railroad Co., 145 So.2d 342 (La.App. 4th Cir.1962); and Emmco Insurance Co. v. California Co., 101 So.2d 628 (Orl., La.App.1958). In light of these decisions, we find no error in the trial court’s instruction. Indeed, the trial court's instruction clearly states well settled principles of Louisiana jurisprudence and it is equally well settled that this Court will accord great weight to the district court’s interpretation of state law when exercising diversity jurisdiction. Halpern v. Lexington Insurance Co., 715 F.2d 191, 192 (5th Cir.1983). III. THE DECEDENT’S NEGLIGENCE AND THE WRONGFUL DEATH CLAIMS The final and most perplexing issue presented requires this Court to determine whether the district court erred by reducing the wrongful death beneficiaries’ recoveries by the amount of the decedent’s negligence. While the jurisprudence of Louisiana is not entirely clear on this point, we are persuaded that the district court correctly interpreted Louisiana law and properly reduced the beneficiaries’ recoveries in proportion to the decedent’s negligence. In 1928, the Louisiana courts first addressed the issue of whether a beneficiary’s wrongful death recovery would be barred under the then existing contributory negligence rule when the decedent’s death was caused by the concurrent negligence of the decedent and a third party. See Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579 (1929). While contributory negli" }, { "docid": "10639701", "title": "", "text": "cars were to be spotted for loading or picked up for shipment? Answer: Yes The jury was asked only whether the Railroad’s negligence was sufficient to invoke liability under the F.E. L.A., i. e., whether its negligence played any part, even the slightest, in bringing about the accident. The jury was not asked to decide whether the Railroad’s negligence was also sufficient to constitute a proximate cause of the accident. No request for a special verdict having been made before the jury retired, this Court exercises its power under Rule 49(a) to make that factual determination. Our appreciation of the evidence is that the Railroad’s negligence in sending its men into Sutton’s yard when it knew or should have known that the right-of-way was littered with scrap material constituted a proximate cause of the accident. Thus we expressly find that the Railroad was guilty of actual fault, as that term is understood in Louisiana law. It is now settled beyond any doubt that a Railroad’s right to recover indemnity or contribution from a third party for liability incurred under F.E. L.A. depends entirely upon state law. See, e. g., Ratigan v. New York Central Railroad Company, 291 F.2d 548 (2d Cir. 1961), cert. denied, New York Central Railroad Company v. Interstate Commodities, Inc., 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961); Chicago, Rock Island & Pacific Railroad Company v. Chicago & North Western Railway Company, 280 F.2d 110 (8th. Cir. 1960), cert. denied, 364 U.S. 931, 81 S.Ct. 378, 5 L.Ed.2d 364 (1961); Zontelli Brothers v. Northern Pacific Railway Company, 263 F.2d 194 (8th. Cir. 1959); Chicago Great Western Railway Company v. Casura, 234 F.2d 441 (8th Cir. 1956); Fort Worth & Denver Railway Company v. Threadgill, 228 F.2d 307 (5th. Cir. 1955); Waylander-Peterson Company v. Great Northern Railway Company, 201 F.2d 408 (8th Cir. 1953); Patterson v. Pennsylvania Railroad Company, 197 F.2d 252 (2d Cir. 1952); United States v. Chicago, Rock Island & Pacific Railway Company, 171 F.2d 377 (10th. Cir. 1948); Chicago, Rock Island & Pacific Railroad Company v. Powers Foundation Drilling Company, 294 F.Supp. 921" }, { "docid": "11816504", "title": "", "text": "of the opinion that he did not exercise the precaution required of him by law, and that the lack of ordinary care and prudence on his part was the proximate cause of his injuries. The plaintiff also attempted in the court below to invoke the doctrine of last clear chance; and he asserts that doctrine as ground for reversal on this appeal. In order that this doctrine may be invoked, it must appear that the appellee was aware, or reasonably should have been, that the plaintiff was in a position of peril. There is no evidence in the record to support such a finding. The train crew had the right to assume that the plaintiff would stop short of the track, since the train had already preempted the street prior to his arrival at the crossing. The crewmen were not negligent in failing to anticipate the negligence of the plaintiff. Pollard v. Davis, 5 Cir., 93 F.2d 193; Eggleston v. Louisiana & A. Railway Co., La.App., 192 So. 774; Wright v. Texas & N. O. Ry. Co., La.App., 19 So.2d 894, 897; Levy v. New Orleans & Northeastern Railway Co., 20 So.2d 559, 565; Matthews v. N. O. Terminal Co., 45 So.2d 547, 553; Bordenave v. Texas & N. O. Ry. Co., La.App., 46 So.2d 525, 529; Calvert Fire Insurance Co. v. Texas & Pacific Ry. Co., La.App., 55 So.2d 693. In our opinion, the court below was correct in entering judgment on the motion for a directed verdict, and the judgment so entered should be affirmed. Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Eckenrode v. Pennsylvania R. Co., 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41; Northern Pacific Ry. Co. v. Bacom, 9 Cir., 91 F.2d 173; Great Northern Railroad v. Taulbee, 9 Cir., 92 F.2d 20; Louisiana & Arkansas Ry. Co. v. Jackson, 5 Cir., 95 F.2d 369; Rule 50(b), Federal Rules of Civil Procedure. Affirmed. . Memorandum opinion of the court below: “ * * * In order for the cab of the engine to reach the middle of" }, { "docid": "3967905", "title": "", "text": "Railroad, 135 Tenn. [92] 104, 185 S.W. 62, L.R.A.1916E, 555; Johnson v. Warwick, 148 Tenn. 205, 254 S.W. 553.” Although the case of Snyder v. Missouri Pacific Railway Co., 183 Tenn. 471, 192 S.W.2d 1008 (1954) arose under Arkansas law where the comparative negligence rule applied, in sustaining the action of the trial judge in directing a verdict for the defendant, the Court stated: “We do not think reasonable men should differ as to the degree of negligence herein of Hoffman, the driver of the car. It seems clear to us that his negligence equalled or was greater than the negligence of the employees of the railroad company and that his representatives are entitled to no recovery. “In Arkansas, as elsewhere, a railroad track is an admonition of danger and it is the duty of persons crossing the track to look and listen before making this effort. Such persons are bound by what they could have discovered had they looked or listened. If the duty to look and listen cannot be adequately performed without stopping, it is the duty of the traveler to stop. Apart from his knowledge of this crossing this driver had warning of the railroad track ahead of him by the flasher signal when he was yet over 150 feet distant. If his view to his right and left was obscured at that time, it became his duty to approach the track with his car under control. Had he done so, when he reached the point 55 feet from the track, he would have had a clear view of the approaching train from the north.” In the case of Union Railway Co. v. Jinks, 55 Tenn.App. 491, 402 S.W.2d 495 (1965), the significant facts were that the plaintiff had driven her car upon a railroad crossing without stopping during daylight hours when visibility was adequate for the plaintiff to have seen the approaching train had she looked. Quoting extensively from the Anderson, Ledbetter and Snyder cases, supra, the Court held that “reasonable men should not differ in concluding that the negligence of Mrs. Jinks constituted at least" }, { "docid": "2287898", "title": "", "text": "was driving at about thirty miles an hour when gradually he entered into a series of fog and smoke drifts, which had begun to settle along the highway. After passing over an incline, he encountered a thicker and more severe atmospheric condition, which seriously impaired his vision although his headlights were burning and in good condition. When he was fifty feet from the crossing, he suddenly saw the train, which blocked the highway; but, being unable to stop within that distance, he drove his automobile into the side of the train. During the year, appellee had traveled over the road on two other occasions, but had never seen a train at the crossing. There was no other eye-witness to the accident, and a substantial part of the case was built around the appellee’s own account of the occurrence. Under the law of Louisiana, contributory negligence is a complete bar to recovery of damages for personal injuries. Allen v. Texas & Pacific Ry. Co., 5 Cir., 195 F.2d 545. The burden of proving contributory negligence is on the defendant; but a plaintiff, in presenting his case, may prove that his own negligence was the proximate cause of the injury. This, we think, is such a case; the company’s negligence, if any, was remote. A motorist is charged with having seen an obstruction in the highway which, by the use of ordinary care and prudence, he should have seen in sufficient time to avoid hitting it. At night he must drive at a speed that will enable him to stop within the distance to which his headlights project. A train across the highway constitutes a most impressive notice to motorists that the highway is temporarily blocked. Car & General Insurance Corporation v. Cheshire, 5 Cir., 159 F.2d 985, 987; New Amsterdam Casualty Company v. Ledoux, 5 Cir., 159 F.2d 905; Car & General Insurance Corporation v. Thibaut, 5 Cir., 161 F.2d 657, certiorari denied 332 U.S. 828, 68 S.Ct. 205, 92 L.Ed. 403; Allen v. Texas & Pacific Ry. Co., 5 Cir., 195 F.2d 545, 547; Piland v. Maryland Casualty Company, D.C.," }, { "docid": "17542848", "title": "", "text": "is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. In this connection there was medical testimony that a “rotary flexion motion”, such as was indicated by appellant’s description of his manner of performing this job, is the “greatest mechanism for producing back pain”. We think it was within the province of the jury to conclude that this potentially injurious “rotary flexion motion” was substantially exaggerated by the exigency of working in a very confined space with ten inches less head room than normal. It is true that there was evidence indicating that appellant might have assumed a less awkward position. Indeed, the not unreasonable finding of contributory negligence indicates that the jury credited this evidence. But at the same time the jury apparently found, as it properly might, that appellant did in fact assume a specially awkward and strained position in an ill-judged effort to accommodate himself to the decreased working space which resulted from lowering the car onto its trucks. The foregoing analysis of the issue of causation does not dispose of the case in its entirety, because it is still necessary to consider a question which was urged as a ground of judgment n.o.v. but was not ruled upon by the trial court. That question is whether the evidence justified a finding that it was negligent to have the riveting done -while the car was down upon its trucks. It is, of course, proper for us to pass upon that question without a ruling by the district court upon it since “[a] successful party in the District Court may sustain its judgment on any ground that finds support in the record”. Jaffke v. Dunham, 1957, 852 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314. The question on the issue of negligence is whether the jury had an adequate basis for concluding that the railroad created an unreasonable" }, { "docid": "13340797", "title": "", "text": "PER CURIAM. Plaintiff-appellant brought this diversity action in the district court below to recover damages for the claimed wrongful death of her husband, William Frank Perry. Perry was killed on September 3, 1971 when an automobile he was driving collided with a Gulf, Mobile and Ohio Railroad Company freight locomotive at a crossing located within the city limits of Dyer, a community of about 2,000 in Gibson County, Tennessee. The case was tried to a jury which returned a verdict in favor of plaintiff-appellant in the amount of $25,000. The jury also answered interrogatories in the form of a special verdict, in which it indicated that it found both the railroad and the decedent to be guilty of negligence, at the same time finding the negligence of the railroad to be proximate while finding that of the. decedent to be merely remote. Under Tennessee law, proximate contributory negligence bars recovery completely; remote contributory negligence only mitigates damages. Frankenburg v. Southern Railway Co., 424 F.2d 507 (6th Cir. 1970). Following the jury verdict, defendant railroad moved for judgment notwithstanding the verdict, under Federal Rules of Civil Procedure 50(b). The trial court granted the motion and entered judgment for defendant, ruling that the evidence showed the deceased to have been guilty of proximate contributory negligence as a matter of law, thereby precluding any recovery by plaintiff. On appeal, Monte Kay Perry claims that the trial court erred in granting the motion for judgment notwithstanding the verdict and that the trial judge erroneously instructed the jury as to the Tennessee law of eontrib-utory negligence. She seeks reversal and a new trial, or in the alternative a reinstatement of the jury verdict. In ruling upon the motion for judgment notwithstanding the verdict, the trial court was obliged to consider the evidence in the light most favorable to the plaintiff, and to ajlow all reasonable inferences to sustain the verdict. Wallace v. Louisville & Nashville Railroad Company, 332 F.2d 97 (6th Cir. 1964); Clinchfield R. R. Co. v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966); Poe v. Atlantic Coast Line Railroad Co., 205 Tenn." }, { "docid": "13528376", "title": "", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge: In this diversity case the railroad appeals from a judgment awarding damages to a motorist for injuries suffered when the bottom of his car struck the railroad’s tracks at a crossing. The railroad argues that the trial court erred in sua sponte resubmitting the case to the jury after explaining to them the effect of their returned answer that the motorist was 70 percent negligent, in granting plaintiff a full award on a judgment n.o.v. despite the jury’s finding following the second submission that the motorist’s negligence was 50 percent, and in ordering a conditional new trial. The railroad also argues that the jury’s damage award was excessive and a new trial on damages must be had. We affirm the giving of the supplemental instruction in the absence of contemporaneous objection. Because there was no predicate motion for directed verdict and there was in any event sufficient evidence to create a jury issue of contributory negligence we reverse the judgment n.o.v. We also reverse the district court’s conditional grant of a new trial and affirm the jury’s damage verdict. This is the second appellate trip for this case. On its first trip we reversed a jury award of $170,000 as excessive and discovering other error reversed the finding of liability. Perricone v. Kansas City Southern Railway Co., 630 F.2d 317 (5th Cir.1980). After a second trial the jury returned its verdict setting Perricone’s damages at $105,000 but also found that his injuries were 70 percent attributable to his negligence. When the clerk read the jury’s answers in open court the judge immediately told the jury: Mr. Foreman and members of the Jury, the Court failed to advise the Jury, and we feel that under the circumstances we should that if you find the Plaintiff more than fifty percent negligent, in other words, you find the Plaintiff more negligent than the Defendant, he will not be able to make any recovery of any damages, whatever. The Court should have advised the Jury of this fact at the time that it was submitted to you, and if" }, { "docid": "6812665", "title": "", "text": "driver and that plaintiff was guilty of contributory negligence. Under the Wisconsin Comparative Negligence Statute, Wis. Stat. § 331.045 (1957), the legal effect of the latter finding was that the contributory negligence of plaintiff was, as a matter of law, equal to, or greater than, the negligence, if any, of defendant’s bus driver. If the trial court was correct in either finding, the verdict was properly directed. We shall first consider the issue relating to the sufficiency of the evidence. We are governed by the rule that, in a trial of issues of fact before a federal court and jury, if the evidence, with all the inferences that justifiably could be drawn from it, constitutes a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, then a motion for a directed verdict for the other party should be denied. Burg v. Great Atlantic & Pacific Tea Company, 7 Cir., 1958, 256 F.2d 613. We must determine “whether there is any evidence in the record, together with all reasonable inferences to be drawn therefrom, which would justify submission of this case to the jury.” Ibid. Gunning v. Cooley, 1930, 281 U.S. 90, 92, 50 S.Ct. 231, 74 L.Ed. 720; Slocum v. New York Life Insurance Co., 1913, 228 U.S. 364, 369, 33 S.Ct. 523, 57 L.Ed. 879. As this court said in Nelson v. Business Men’s Assur. Co. of America, 7 Cir., 1939, 108 F.2d 363, 365: “A question of law is thus presented which calls for a consideration of the record, not for the purpose of weighing the evidence, but for the purpose of determining whether there was some evidence. In the consideration of such a question, it is the duty of the court to take that view of the evidence, and all the inferences that may be properly drawn therefrom most favorable to the plaintiff, and, if the evidence is of such a character that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury.” See also Smith" } ]